In Mora v. Zeta Interactive Corp., et. al., Case No. 16-00198 (E.D. Cali., Feb. 10, 2017), Plaintiff brought a class action lawsuit against Defendants for violations of the Telephone Consumer Protection Act (TCPA). Plaintiff alleged that Defendants made unsolicited telephone calls to him and others similarly situated, who never had prior contact with Defendants, never given his phone number to Defendants, and never consented to phone calls from Defendants.
The parties became embroiled in a discovery dispute, and Plaintiff filed a Motion to Compel. The parties then filed a joint statement regarding the discovery disagreement in advance of the hearing on the Motion. The court issued an order requiring the parties to conduct an in-person meet and confer and file a supplemental joint statement detailing their meet and confer efforts.
By its Motion, Plaintiff sought documents identifying all phone call recipients who had been called by Defendants using dialing equipment, as well as the total number of such calls and the total number of such recipients. The Motion further sought to compel production of a log of all calls made during a certain time period. Defendants objected on the grounds of overbreadth, undue burden and relevance.
The court agreed that Defendants had to produce certain call logs, but the parties still disputed the manner of their production. Defendants argued that the information about calls was stored in its proprietary source code and that in order to produce a call list, Defendants would have to access the source code and run commands or scripts to create the list. Defendants offered to permit Plaintiff to hire an expert to view the source code and data in a secure location on a secure laptop. Plaintiff argued that there was no need to review source code.
The court looked at FRCP 34 and held that while a responding party is not required to create documents responsive to a request, it must produce ESI or permit inspection of ESI that is reasonably accessible. The court found that Defendants did not show that Plaintiff would have to view the source code to see the call logs rather than simply running the commands themselves and producing a log for Plaintiff. The court ordered Defendants to do so and stated that if they could not, they could request an evidentiary hearing.