YVONNE GONZALEZ ROGERS, District Judge.
On April 4, 2019, the Court addressed plaintiff's motions in limine Nos. 3, 5, 6, and 8.
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
The background giving rise to this action is well-known, and the Court will not repeat it here. (See, e.g., SJ Order at 3-5.) Parties' remaining motions in limine all concern whether defendant should be allowed to present at trial specific documents and evidence in support of their contention that they did not obtain certain phone numbers, including the 5193 number belonging to plaintiff Perez, via skip-tracing. (See Dkt. Nos. 261 ("Plaintiff's MIL"), 262 ("Defendant's MIL").)
Plaintiff avers that because of (i) defendant's failure to produce many of the documents at issue until shortly before the deadline for completion of fact discovery, (ii) defendant's prior statements regarding the existence of some of these documents in response to plaintiff's requests, and (iii) the Court's previous decision to exclude some of these documents pursuant to Rule 37, the Court should now prohibit defendant from using these documents or presenting evidence related to the issue of whether defendant obtained certain phone numbers via skip tracing at trial. (See Plaintiff's MIL at 1-8, 21-24.) Defendant disagrees, arguing that defense counsel produced the documents as soon as he learned of their existence and before the discovery deadline. Moreover, defendant argues that the documents were not responsive to plaintiff's prior document requests and plaintiff knew of the information conveyed by the documents as early as April 2017. (See Defendant's MIL.)
Exhibit 506 is a screenshot from the Beyond (2.1.31.2) RCA ("Beyond") software program dated October 12, 2017 at 12:24 PM showing an ACA Advance Trace Report for Daniel Reynoso. (Dkt. No. 307-1 at ECF 50 ("Trace Report").) Defendant asserts that Exhibit 506 "shows the skip-traced information which Defendant received from Experian on May 8, 2015." Defendant further avers that because "the telephone number ending in 5193, which allegedly belongs to Plaintiff Perez, was
(Trace Report.)
Exhibit 507 is another screenshot from the Beyond software program reflecting an Edit Tracking Report for Daniel Reynoso. (Dkt. No. 307-1 at ECF 52 ("Tracking Report").) Defendant avers that Exhibit 507 "shows that the 5193 number was removed from the `Phone' field, i.e., phone field number 1, at 3:27 p.m. on June 7, 2016." (Def. Suppl. Decl. ¶ 11.) On the next page is an image of Exhibit 507.
(Tracking Report (emphasis supplied by defense counsel).) In light of the gravity of plaintiff's request that the Court exclude these documents, the Court summarizes herein a chronology of their history within the instant action.
In plaintiff's first set of requests for production of documents, which plaintiff served on September 21, 2016, request No. 1 sought "all documents and communications concerning plaintiffs." (See Dkt. No. 314-1 at ECF 10-14 ("March 29, 2017 Letter") at ECF 10.) On October 24, December 5, and December 6, 2016 defendant produced a number of documents in response to that request, including the collection notes for Daniel Reynoso, the debtor to whom plaintiff Perez's phone number ending in 5193 previously belonged. (See Def. Suppl. Decl. ¶ 5; see also Dkt. No. 307-1 at ECF 9-14 ("Def. Production").)
On March 29, 2017, plaintiff sent defendant's counsel a meet-and-confer letter regarding these requests and productions. (See id.) Therein, plaintiff asserted, among other things, that defendant "failed to produce any documents concerning the plaintiffs or any calls made to their cellular phones from Beyond." (Id. at 2.) The letter also attached, as Exhibit 1, "an example of how Beyond displayed account files" and asked that defendant "produce all Beyond files as they are kept in the normal course of business relating to Request No. 1." (Id.) Exhibit 1 to the March 29 letter, like Exhibits 506 and 507, is a screenshot from defendant's Beyond software. (See March 29, 2017 Letter, Ex. 1.) The resulting meet-and-confer failed.
On April 13, 2017, plaintiff's counsel deposed defendant's former employee, Steve Kizer. (See Dkt. No. 307-1 at ECF 66-83 ("Def. Excerpts of Kizer Depo."); see also Dkt. No. 314-1 at ECF 28-34 ("Pla. Excerpts of Kizer Depo.").) During his deposition, plaintiff's counsel provided Kizer with a copy of defendant's collection notes for Reynoso's account. (See id. at 4:1-4; 115:3-25; see also Def. Production.) With respect to the history section of that document, Kizer explained that the first entry represented a request for "an ECA Advance" on May 7, 2015 at 4:24 p.m. (Def. Excerpts of Kizer Depo at 120:10-18.) Kizer elaborated that "Trace ECA is software. What they do is they send the account to an ECA. ECA then returns the account with assets, bankruptcy scores and a bank card. That you don't get in DAKCS. That only shows up in Beyond." (Id. at 120-18-22.) Plaintiff's counsel then asked Kizer "You mean that the result of a skip trace would not be shown in DAKCS, but it would show up in Beyond?" (Id. at 120:23-24.) Kizer replied "Correct." (Id. at 120:25.)
Plaintiff's counsel next asked "[w]ould this also be a skip trace for a phone number or can you tell?" (Id. at 121:1-2.) Kizer replied, "I can't tell you because — well, there's no phone number up there. So I would have to go through the notes and see when it was pulled out and a how many times it was pulled out." (Id. at 121:3-6.) Counsel asked Kizer what he meant by "pulled out[.]" (Id. at 121:7.) Kizer explained "[t]hat [it] means somebody has removed a number . . . ." (Id. at 121:8.) Kizer elaborated that the 5193 number was removed from the home field, which indicated that it was a resident number. (Id. at 121:14-20 ("Collector No. 23, it's the fourth one from the bottom on June 7, 2016 at 3:28 dialed that 5193 number. It was a Global Connect. That's . . . what GC stands for resident number. That means it was put in the home field. Gave them the QA. That's — the QA is this call is being recorded. No such person. Remove phone number . . . .").) Later plaintiff's counsel referred Kizer back to the second page of the collection notes for Reynoso and asked, "do you know why there would be no phone number listed in the phone line?" (Id. at 123:21-23.) Kizer replied "[b]ecause in June of 2016 somebody determined it was a bad number, and they removed it." (Id. 124:1-2.) Kizer later elaborated that the "5193 [number] was dialed by Global Connect, and it was transferred to Collector 23 on June 7th at 3:28. It was a residential number. That collector gave them, this call is being recorded, gave them the QA. Okay. They said, hey, there's no such person here. They then removed, RMV, removed the phone number." (Id. at 127:4-10.)
Kizer also explained, while examining a DAKCS database screen, that "Beyond would have tremendously much more information, critical information" than that available in DAKCS. (Pla. Excerpts of Kizer Depo. at 117:23-25.) He further explained that Beyond would contain "Phone Fields 2 through 10, phone field fax, extra remark line along the bottom where notes are put. Insurance information, whether the insurance is billed or not. You would have also have subtabs for — in the header for where a check was taken and where additional skip information was stored."
On April 17, 2017, plaintiff filed his first motion to compel defendant to produce all skip tracing information related to plaintiff and all ECA Advance Trade Reports. (Dkt. No. 40 at 1-2.) Therein, and importantly, plaintiff averred that defendant
During the discovery hearing (which occurred on May 1, 2017) defendant's counsel, Mark Ellis, represented to Judge Corley that he had "never heard of" the Beyond system. (Dkt. No. 314-1 at ECF 16-19 ("May 1 Hearing Transcript") at 5:23-6:8.) Thereafter, the parties engaged in a meet-and-confer at the courthouse at the direction of Judge Corley, which plaintiff's counsel memorialized in a letter dated and emailed the same day. (See Dkt. No. 314-1 at ECF 21-24 ("May 1, 2017 Letter").) Therein, plaintiff's counsel summarized that defendant had agreed to (1) "review whether any ECA or Accurint files existed concerning any named Plaintiff[,]" (2) "review whether any paper account files exist from any creditor regarding any named Plaintiff[,]" and (3) "discuss with its client whether a production from the Beyond software can be made with regards to any of the named Plaintiffs." (Id. at 1 (emphasis supplied).) Plaintiff's counsel also noted that the parties had agreed that "[s]hould Defendant discover any of the above documents, it will produce them on or by May 8, 2017." (Id.) During the May 1 meet-and-confer, plaintiff provided defendant's counsel with a copy of the transcript from the April 13, 2017 deposition of Steven Kizer.
On May 8, 2017, defendant responded in writing. (See Dkt. No. 314-1 at ECF 36-39 ("May 8, 2017 Letter").) With respect to plaintiff's Request No. 1, defendant represented that "[n]o ECA reports were generated for Ms. McMillion or Mr. Perez." (Id. at 1.) Defendant further stated that:
(Id. at 2 (emphasis in original).) Defendant also indicated that it would be "supplementing [its] document production to include the documents received from Ms. McMillion's and Ms. Adekoya's original creditors." (Id. at 1.) On May 8 and 9, 2017, defendant produced first and second supplemental productions in response to plaintiff's first set of requests. (See Dkt. No. 307-1 at ECF 16-20.)
Over five months later, and on the eve of the discovery cutoff, defendant switched gears and defense counsel claimed that he first learned that one could create a screenshot of the ECA Advance Trace and Edit Tracking Reports on October 12, 2017. (Def. Suppl. Decl. ¶ 14.) "Once [Ellis] learned of this information, the screenshots were immediately captured and printed out on paper. Thus, these documents came into existence on October 12-13, 2017[.]" (Id.)
On October 15, 2017, defendant produced, via mail and email, a third supplemental document production in response to plaintiff's first set of document requests. (See Dkt. No. 307-1 at ECF 23-25 ("Oct. 15, 2017 Prod."); Dkt. No. 307-1 at ECF 27.) Among the documents produced on October 15 was a redacted copy of the screenshot of the ECA Advance Trace Report for debtor Daniel Reynoso or Exhibit 506.
On October 23, 2017, two days prior to the fact discovery cutoff and one day prior to the depositions of Bob Keith and Chris Paff, defendant produced, via mail and email, a fourth supplemental document production in response to plaintiff's first set of document requests. (See Dkt. No. 307-1 at ECF 30-44 ("Oct. 23, 2017 Prod."); Dkt. No. 307-1 at ECF 46-48.) Contained therein were unredacted copies of the ECA Advance Trace Report (Exhibit 506) and the Edit Tracking Report (Exhibit 507). (See Oct. 23, 2017 Prod. at ECF 42-43.) The Court is not aware that defendant ever served a supplement Rule 26 disclosure or offered to continue depositions given the significant shift and production of new evidence.
On December 11, 2017, plaintiff filed a motion for partial summary judgment. (Dkt. No. 138.) In support of defendant's cross-motion, and in opposition to plaintiff's motion, defendant submitted a declaration by its Executive Vice President, Bob Keith, which attached and finally interpreted the meaning and relevance of Exhibits 506 and 507, then referred to as Exhibits 18 and 19, respectively.
Regarding Exhibit 507, Bob Keith represented that the exhibit reflected "a screenshot of a so-called `Edit Tracking Report' for Daniel Reynoso's account" which "details that on June 7, 2016 at 3:27 pm, the phone number ending in 5193 was removed from Rash Curtis' database." (Id. ¶ 13.) Bob Keith also suggested that had "one of Rash Curtis' collection employees [] manually added the phone number ending in 5193 to Reynoso's account, it would be shown on this report as a `new value,'" however the report does not so reflect. (Id.) Based thereupon, Bob Keith averred that Exhibit 507 confirmed that "the phone number ending in 5193 was provided by Rash Curtis by Sutter General Hospital when it electronically assigned Reynoso's debt to Rash Curtis for collection and not added by skip-tracing." (Id.)
In his January 8, 2018 opposition to defendant's cross-motion for partial summary judgment, plaintiff requested that the Court strike Exhibits 506 and 507, on the grounds that defendant had previously represented, on May 1, 2017, that "[n]o ECA reports were generated for . . . Mr. Perez" and that "there is simply no way to generate any additional, responsive documents using the `Beyond' software besides the collection notes which have already been produced." (Dkt. No. 151 at 10 (citing May 1, 2017 Letter at 1-2).) Plaintiff specifically requested that the Court "strike Exhibits [506] and [507], and not permit their use in the future." (Id. at 12 (emphasis supplied).)
In its response, defendant argued that the documents should not be excluded because (1) their prior statement that "[n]o ECA reports were generated for
On February 2, 2018, the Court issued its Order regarding the parties' cross-motions for summary judgment. (See SJ Order.) Therein, the Court found that "defendant's representation that plaintiffs `already [had] everything that [Rash Curtis] can produce' in regard to ECA Advance Trace and Edit Tracking Reports relevant to Perez's claim" was "inconsistent with defendant's current position that Exhibits [506] and [507] `conclusively establish that Mr. Perez's 519[3] number was not skip-traced." (Id. at 12 n.9.) Based thereupon, the Court struck the exhibits and reiterated that the Court had previously cautioned defendant "that `delaying and sandbagging tactics' would not be tolerated and would result in monetary and/or evidentiary sanctions." (Id. (citing Cert. Order at 9 n.9).)
On March 30, 2018, defendant filed a motion for reconsideration of its motion for summary judgment in light of ACA International v. Federal Communications Commission. (Dkt. No. 189 ("Reconsideration Motion").) Although defendant's motion correctly summarized the Court's order as having held that "Rash Curtis did not possess Mr. Perez's prior express consent for any of the calls placed to his cell phone number ending in 5193" (id. at 5), defendant did not request that the Court reconsider its striking of Exhibits 506 and 507 (see, generally, id.). Mention of Exhibits 506 and 507 did not reappear on the docket until parties filed their unresolved Motions in limine on February 15, 2019. (Plaintiff's MIL; Defendant's MIL.)
With respect to the pending motions in limine, the Court finds that the same inconsistencies infect defendant's current argument as existed at the summary judgment stage.
The Court is unpersuaded by defense counsel's repeated representations he "was not aware that screenshots of the ECA Advance Trace and Edit Tracking Reports" could be created and produced until October 12, 2017 and "had no idea what an ECA trace was" until he first received the transcript for the deposition of Steve Kizer just days before the October 15 and 23, 2017 production of Exhibits 506 and 507. (See, e.g., Def. Suppl. Decl. ¶ 14; March 29, 2019 Hearing Transcript at 5:3-17.)
First, as a preliminary matter, the duty imposed by Rule 26(e) is one placed upon the party, here the defendant, not counsel. Fed. R. Civ. P. 26(e) ("a party who has . . . responded to [a] . . . request for production . . . must supplement or correct its . . . response"). Second, the Court's comprehensive review shows that as early as March 29, 2017, Ellis did have information indicating that one could create a screenshot of the Beyond software, which house the ECA Advance Trace and Edit Tracking Reports. On that day, Ellis received a letter from plaintiff's counsel attaching a screenshot from the Beyond software. (See March 29, 2017 Letter at 2 ("Exhibit 1 attached to this letter shows an example of how Beyond displays account files. Please produce all Beyond files as they are kept in their normal course of business relating to Request No. 1.")). Third, a month later Ellis received a transcript of Steve Kizer's deposition testimony, which Ellis now credits with enlightening him as to the relevance of the ECA Trace reports to whether a particular number was obtained via skip-tracing, as early as May 1, 2017, following the parties meet-and-confer on that date.
Fourth, and most importantly, defendant was ordered by Judge Corley and agreed to look for ECA and paper account files concerning any named plaintiff, including Perez, and to determine whether it could produce information housed in the Beyond software. Despite receiving information to the contrary, defendant then represented to plaintiff that such files did not exist, and such a production could not be made. Over a month after Ellis received an example of a screenshot of the Beyond software and seven days after he received the transcript of Kizer's deposition, which highlighted the importance of the information in Beyond to determining whether skip-tracing occurred, defendant represented to plaintiff that:
(See id.; see also May 8, 2017 Letter at 1-2.)
Finally, defendant received notice that the Court's prior exclusion of Exhibits 506 and 507 included exclusion for the trial. Plaintiff's previous request that the Court exclude Exhibits 506 and 507 specifically asked that the Court "strike Exhibits [506] and [507], and not permit their use in the future." (Dkt. No. 151 at 12 (emphasis supplied).) The Court granted that request and struck the exhibits pursuant to Rule 37(c)(1).
Defendant's current request that the Court "vacate its prior order . . ." would set a dangerous precedent. (See Defendant's MIL.) To do so would merely encourage defendants either to ignore their affirmative obligations to produce discovery or, at a minimum, disclose the nature of the existing information, especially in light of the amount of judicial oversight provided on these precise issues. Even then, defendant did not acknowledge that it had shifted positions and contradicted prior representations to the Court and opposing counsel. Further it never did or offered to do anything to cure the prejudice to plaintiff. The Court cannot countenance this manner of gamesmanship and if the consequences are significant at trial such is the price to be paid, both in terms of this case and as a deterrent in other cases. For these reasons, the Court
Plaintiff's motion in limine No. 2 concerns Trial Exhibits 504 and 505.
Exhibit 504 (bearing bates stamp RCA 272-278) consists of records from Sutter General Health regarding non-party debtor Daniel Reynoso. (Dkt. No. 263-4 at ECF 34-41 ("Ex. 504").) Defendant previously attached one page of Exhibit 504, RCA 273, as Exhibit 6 to the August 24, 2017 Declaration of Robert Keith filed in support of defendant's supplemental opposition to plaintiff's motion for class certification. (See Dkt. No. 71-2 at ECF 24-25.) Defendant produced Exhibit 504, as a whole, for the first time on October 23, 2017, two days before the October 25, 2017 original fact discovery deadline.
Plaintiff moves to exclude Exhibits 504 and 505 as impermissible hearsay. (See Plaintiff's MIL at 6.) Exhibit 505 (bearing bates stamp RCA 12718-12724) appears to be an email chain between Bob Keith and Mike Paff dated May 5, 2017 re: "Client notes on Reynoso" which states on the first page: "They were calling this cell also and no one told them it was bad. I do not want to get Sutter sued though so if that is a possibility don't use." (Dkt. No. 262-1 at ECF 46-53 ("Ex. 505") at ECF 47.) The next five pages are entirely reacted. (See id. at ECF 48-52.) The last page of the exhibit appears to attach Sutter's notes regarding debtor Reynoso. (See id. at ECF 53.)
Plaintiff contends that 504 is not a record "kept in the ordinary course of business by Rash Curtis" because "at summary judgment, Defendant admitted that it did not receive Exhibit 504 from Sutter until after this case started . . . in 2015." (Id. (emphasis supplied).) However, the exception to the hearsay rule for business records does not require that the records be kept by a party to the litigation but that "the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit[.]"
However, with respect to the email and subsequent pages of redactions in Exhibit 505, the motion is granted, defendant's contention that it does not intend to use the email contained in Exhibit 505 to prove the truth of the matter asserted (see Dkt. No. 273 ("No. 2 Opp.") at 1), is unpersuasive. Defendant argues that it intends to offer Exhibits 504 and 505 as "evidence that Sutter itself has the 5193 number[.]" (Id.) However, Exhibit 505 does not contain reflect the 5193 number. (See Ex. 505.) The only reference thereto is the hearsay statement in the email "They were calling this cell also and no one told them it was bad." (See id. at ECF 47.) Therefore, defendant does appear to offer the email in Exhibit 505 for the truth of the matter asserted therein, that Sutter had been calling, and therefore had in their records, the 5193 number as belonging to Reynoso. Accordingly, the Court
Plaintiff's motion in limine No. 9 seeks to exclude witness testimony that defendant did not call the phone numbers held in phone fields 5 through 10 that were not also stored in fields 1 through 4, of defendant's debtor database.
Plaintiff also asserts that defendant's purported testimony violates Federal Rules of Evidence 403 and 1002. (Plaintiff's MIL at 23.) However, this argument relies on attacks regarding the witnesses' credibility, weight of the purported evidence, and factual disputes. See Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("[I]t is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts.").
For the foregoing reasons, the Court
This Order terminates Docket Numbers 261, 262, and 263.
