Balschmiter v. TD Auto Fin. LLC.

• Decision Date: 21 May 2015
• Docket Number: Case No. 13-CV-1186-JPS
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: AMANDA BALSCHMITER, Plaintiff, v. TD AUTO FINANCE LLC. Defendant.

AMANDA BALSCHMITER, Plaintiff, v. TD AUTO FINANCE LLC. Defendant.

Case No. 13-CV-1186-JPS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

May 21, 2015

ORDER

1. BACKGROUND

The plaintiff, Amanda Balschmiter, filed a putative class action complaint against the defendant, TD Auto Finance LLC ("TDAF"), alleging that, as a non-customer of TDAF, the auto-dialed debt-collection calls TDAF placed to her cell phone—and, presumably, to the cell phones of other non-customers—violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. (Docket #1).

On November 20, 2014, the Court denied the plaintiff's motion for class certification. See Balschmiter v. TD Auto Fin. LLC, 303 F.R.D. 508, 530 (E.D. Wis. 2014). Thereafter, the plaintiff filed a petition for permission to appeal the Court's denial of class certification, pursuant to Rule 23(f) of the Federal Rules of Civil Procedure. (See Docket #78). On March 19, 2015, the Seventh Circuit denied the plaintiff's petition. In re Amanda Balschmiter, Case No. 14-8031 (7th Cir. Mar. 19, 2015) (order denying petition for permission to appeal). On March 20, 2015, the Court scheduled this case for trial on June 1, 2015 (Docket #80); that trial scheduling order was amended on April 30, 2015, setting a new trial date of June 4, 2015. (Docket #89).¹

Before the Court are three pretrial motions: (1) the plaintiff's motion in limine to exclude certain evidence and arguments related to willfulness under the TCPA (Docket #70); (2) the defendant's motion to enforce the protective order (Docket #83); and, (3) the plaintiff's motion to compel production of documents from the defendant (Docket #82). As will be discussed more fully below, the Court will deny the plaintiff's motion in limine, grant the defendant's motion to enforce the protective order, and deny the plaintiff's motion to compel production.

2. THE PLAINTIFF'S MOTION IN LIMINE

The plaintiff's motion in limine requests that the Court "adopt[] the majority definition of willful or voluntary [conduct] under the TCPA," and "preclude[] [the defendant] from offering any evidence or argument at trial that its conduct was not willful or knowing because it was unaware of the requirements of the TCPA, or because it believed that it had put procedures in place to avoid violating the TCPA." (Docket #70 at 4). The plaintiff argues that any such arguments and evidence—if the Court "adopt[s] the majority view"—should be barred by Federal Rules of Evidence ("FRE") 401 and 402, and would also "run[] the risk of confusing the trier of fact," and thus should also be barred under FRE 403. Id.

The defendant offers various arguments in opposition to the plaintiff's motion in limine; those arguments can be summed up as follows: the plaintiff's "proposed definition [of willfully or knowingly] finds no support in the statute and has no basis in reality." (Docket #81 at 1).

Regardless of the parties' arguments, the Court will deny the plaintiff's motion in limine for one simple reason: the parties have stipulated to a bench trial in this matter. (See Docket #88). And, that stipulation was filed after the plaintiff's motion in limine was fully briefed. Whether the parties intended that stipulation to effectively moot the plaintiff's motion is unclear;indeed, it would have been helpful for the parties to address whether their arguments regarding wilful or knowing conduct remained before the Court.

Regardless of the parties' intent, however, this matter will now be tried before the Court, sitting without a jury, making a pretrial ruling on the plaintiff's motion in limine unnecessary. See Cramer v. Sabine Transp. Co., 141 F. Supp. 2d 727, 733 (S.D. Tex. 2001) (stating when a bench trial will occur, motions in limine are nonsensical); see also Singh v. Caribbean Airlines Ltd., No. 13-CV-20639, 2014 WL 4101544, at *1 (S.D. Fla. Jan. 28, 2014) ("The rationale underlying pre-trial motions in limine does not apply in a bench trial, where it is presumed the judge will disregard inadmissible evidence and rely only on competent evidence....In fact, courts are advised to deny motions in limine in non-jury cases.") (citing 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2411 (3d ed. 2008)). This view is consistent with Seventh Circuit precedent. See Ashford v. Gilmore, 167 F.3d 1130, 1136 (7th Cir. 1999) ("...[T]he law presumes that judges are not influenced by improper evidence brought before them.") (citing, inter alia, United States ex rel. Placek v. Illinois, 546 F.2d 1298, 1305 (7th Cir. 1976)); City of Joliet v. Mid-City Nat. Bank of Chicago, No. 05-CV-6746, 2012 WL 5463792, at *11 (N.D. Ill. Nov. 5, 2012).

Thus, for the reasons stated above, the Court will deny the plaintiff's motion in limine (Docket #70). That said, the parties are free to—indeed are required to—argue the proper definition of wilful or knowing conduct in their respective trial briefs.

3. NOTICE TO PUTATIVE CLASS MEMBERS

3.1 Contacting Putative Class Members Using Materials Obtained in Discovery is Precluded By the Protective Order

The defendant's motion to enforce the protective order seeks an order from the Court that would "preclude Plaintiff or her attorneys from using data produced pursuant to the Protective Order to identify or contact third parties"; and, by third parties, the defendant means putative class members. (Docket #83 at 1). The genesis of the defendant's motion was a letter from the plaintiff stating that, despite the Court's denial of class certification, Plaintiff's Counsel—as "class counsel"—"have an obligation to inform proposed class members of the current posture of this matter and, for any of these non-customers of [TDAF] who received automated calls on their cellular telephones who wish to do so, to pursue available avenues to vindicate their rights." (Docket #85-7 at 1). This obligation, according to the plaintiff, is particularly acute given that the statute of limitations is now running on the putative class members' claims. Id.

To inform the putative class members, the plaintiff has taken a list of cellular telephone numbers provided by TDAF and used reverse look-up methods to ascertain the identifying information—including names and addresses—of those individuals; the plaintiff intends to send a letter to these individuals to inform them of their "potential claims." (Docket #90 at 4-5). The plaintiff's reverse look-up process, from TDAF's original list of telephone numbers, "produced a list of approximately 193,000 names and addresses of individuals." Id. at 5. TDAF consented to this reverse look-up process, as it expressly concedes, but argues that it did so "to assist the Court in its analysis of whether a class could be ascertained for purposes of certification." (Docket #95 at 5). The plaintiff argues, conversely, that TDAF's consent tothis reverse look-up process implicitly waived TDAF's right to enforce the protective order; in addition, the plaintiff argues that because TDAF expressly permitted this process, the data the plaintiff generated with TDAF's consent falls outside the scope of the protective order. (Docket #90 at 8).

The defendant's main argument is that the stipulated Protective Order entered by the Court on February 11, 2014 (see Docket #22, #23), explicitly precludes the plaintiff from using telephone numbers produced by TDAF during discovery to ascertain and contact putative class members. (See Docket #84 at 11) ("...Section 7.4(d) expressly contemplates Plaintiff's present demand—to use the phone numbers to contact third parties to this lawsuit—and prohibits such a use."). The portion of the protective order that governs the instant dispute states as follows:

7.4 Disclosure of Certain Telephone Numbers

In the course of this litigation, ...Defendant TDAF may produce data that includes telephone numbers of Customers ("Customer Outbound Dial Data") to Plaintiff. Such telephone numbers provided with Customer Outbound Dial Data are uniquely identifiable private financial information of TDAF's customers, and accordingly, require heightened protection from disclosure. The Parties hereto agree that such Customer Outbound Dial Data is designated as "HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY" pursuant to Section 2.4 of the Protective Order. For purposes of the Customer Outbound Dial Data only, the following provisions supersede the use, disclosure and handling of [such data]...

. . .

(d) The Receiving Party, their Outside Counsel and their Expert may not contact any telephone numbers listed in the Customer Outbound Dial Data for any purpose and may not attempt to ascertain the name, address, any other telephone number or contact information or anyother information associated with the telephone numbers or the subscribers of the telephone numbers provided in the Customer Outbound Dial Data, through reverse skip tracing or otherwise, for any purpose.

(Docket #22 at 10-11).

The plaintiff concedes that the list of telephone numbers provided by TDAF during discovery is covered under the protective order. (See Docket #90 at 7) (noting that "there is no question that the list of telephone numbers provided by TDAF is covered under the Protective Order"). And, the plaintiff also notes that if she "proposed to call those numbers, that would violate the Protective Order." Id. Nevertheless, the plaintiff argues she is entitled to do so because her plan to notify the putative class members "proposes to send letters using the list of names and addresses which Plaintiff derived from those telephone numbers," and the protective order "does not make confidential the list of names and addresses, or anything else, derived from the telephone numbers produced by TDAF, but only the telephone numbers themselves." Id. (noting, also, that "[t]here is nothing in the language of the Protective Order that governs material derived from disclosures or responses to discovery; the Protective Order governs only the disclosures or...