Krakauer v. Dish Network L.L.C.
| Decision Date | 12 July 2016 |
| Docket Number | 1:14-CV-333 |
| Citation | 165 F.Supp.3d 432 |
| Parties | Thomas H. Krakauer, Plaintiff, v. Dish Network L.L.C., Defendant. |
| Court | U.S. District Court — Middle District of North Carolina |
Anthony I. Paronich, Edward A. Broderick, Broderick & Paronich, P.C., John J. Roddy, Bailey & Glasser LLP, Boston, MA, Brian A. Glasser, John W. Barrett, Bailey & Glasser, LLP, Charleston, WV, Matthew P. McCue, Law Office of Mathew P. McCue, Natick, MA, Patrick Muench, Bailey & Glasser, LLP, Joliet, IL, Jacob Matthew Norris, The Norris Law Firm, Raleigh, NC, for Plaintiff.
Benjamen E. Kern, Benesch, Friedlander, Coplan & Aronoff, LLP, Columbus, OH, David M. Krueger, Eric L. Zalud, Jeremy Gilman, Laura E. Kogan, Benesch, Friedlander, Coplan & Aronoff, LLP, Cleveland, OH, Elyse D. Echtman, Jacob D. Albertson, Jamie L. Shookman, John L. Ewald, Peter A. Bicks, Orrick Herrington & Sutcliffe LLP, New York, NY, Richard J. Keshian, Kilpatrick Townsend & Stockton LLP, Winston-Salem, NC, for Defendant.
CATHERINE C. EAGLES
This matter is before the Court on a motion in limine filed by the plaintiff, Dr. Thomas Krakauer. Among other things, Dr. Krakauer has moved to exclude the defendant Dish Network L.L.C.'s evidence concerning its established business relationship (“EBR”) defense; evidence concerning opinions in Dr. Debra Aron's supplemental report; and Dish's Exhibits 31A to 31S, which list different categories of class members' phone numbers as to which Dish contends there was no violation of the Telephone Consumer Protection Act. (Doc. 181 at ¶¶ 1, 7, 8).
Dr. Krakauer contends, inter alia , that Dish failed to timely disclose this evidence and that it is not relevant. Dish contends that that the EBR evidence and Dr. Aron's report were timely disclosed; that Dr. Aron's report is relevant; and that Exhibits 31A-S, including the EBR exhibit at 31M, are summaries of other evidence. Dish also contends that, even if any evidence is untimely, any error is harmless. Because Dish did not timely disclose this evidence and the error is prejudicial both to Dr. Krakauer and to the judicial process, the Court will grant Dr. Krakauer's motion in part and order that Dish cannot use any EBR evidence, testimony about Dr. Aron's supplemental report, or Exhibits 31A-S.
The remaining aspects of Dr. Krakauer's motion in limine as well as Dish's motions in limine remain under advisement. Separate orders will be entered as time permits.
This is a class action alleging violations of the Telephone Consumer Protection Act (“TCPA”) by Dish Network L.L.C. (Doc. 32 at 13). Plaintiff Dr. Thomas Krakauer represents two classes of people who were on a do-not-call list but received telephone calls from Satellite Systems Network (“SSN”) marketing Dish satellite television services. (See Doc. 153 at 1-2). Since the beginning of this case, Dish has asserted that some class members are not eligible to recover either because their phone numbers were not residential or because they were not on the do-not-call registry at the time of the calls. (E.g. , Doc. 56 at 17, 23). Dish also has asserted, vigorously and repeatedly, that some numbers belong to customers with whom it had an established business relationship (“EBR”) or who consented to the calls, which are affirmative defenses under the TCPA. (E.g. , Doc. 34 at 10-11; Doc. 56 at 20).
In its initial disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure
in July 2014, Dish named three Dish employees who had discoverable information about claims or defenses: Joey Montano, Bruce Werner, and Blake Van Emst. (Doc. 205-1 at 2).1 As to Mr. Montano and Mr. Werner, the disclosures stated that each “has knowledge regarding DISH's ‘do-not-call’ policies and procedures and DISH's policies, procedures, and directives relating to DISH's Independent Retailers.” (Id. ). The disclosure as to Mr. Van Emst was similar. (See id. ). Dish did not specifically identify any witness as having knowledge of residential numbers, the consent defense, or EBR. (See id. ).
In discovery, Dr. Krakauer sought to identify information about the categories of calls for which Dish would offer affirmative defenses. Dr. Krakauer's counsel requested information about defenses, including EBR and consent. (Doc. 205-3 at 1-4). In its responses, Dish objected on numerous grounds, including that the request was premature, sought information not in its control, and was unduly burdensome, and that identifying EBR customers was “not possible ... absent individualized inquiry.” (Id. at 2). Dish referred to but did not identify SSN and Five92 documents and witnesses, and provided only a list (the “EBR list”) of what it characterized as “persons or entities with whom DISH has or had an established business relationship” and who “gave written permission to be contacted” by Dish. (Id. at 2). The list, which was later filed with the Court, redacted the full phone numbers and included obviously incorrect dates, such as “1/1/1900.” (See Doc. 56-16).
Dr. Krakauer's counsel sought to depose Dish on its defenses, including consent and EBR. (Doc. 183-3 at 5 ¶¶ 7-10). Dish identified Mr. Werner as the employee who would be deposed on those topics. (Doc. 183-2 at 4). When Dr. Krakauer's counsel asked questions about those defenses at deposition on March 17, 2015, Mr. Werner could not identify people who fit either defense, and Dish's counsel stated that Mr. Werner “is not going to be able to answer that question, as we sit here today.” (Id. at 5-7). Mr. Werner was shown the disclosed EBR list and was unable to answer questions about it. (See id. at 7 ( )).
Dish's expert disclosure deadline was March 12, 2015. (Doc. 46).
Dr. Krakauer moved for class certification on March 23, 2015, based, in part, on the expert report of Anya Verkhovskaya. (Doc. 48 at 9). Ms. Verkhovskaya's initial report analyzed call records and phone database information from Five9, LexisNexis, 3 the National Do Not Call Registry, and other sources. (Doc. 48-2 at 8-15).
As early as April 13, 2015, Dish disputed the accuracy of Ms. Verkhovskaya's analysis. (Doc. 56 at 8). In opposing class certification, Dish provided a list of phone numbers that Dish contended were associated with existing Dish customers and to which Dish had an EBR defense. (Doc. 56 at 21; Doc. 56-16). This list had the same Bates number as the EBR list Dish produced in discovery; again, it redacted the full phone numbers and included inaccurate dates. (See Doc. 56-16; Doc. 205-3 at 2).
Dish also offered the report of Dr. Debra Aron in an effort to exclude Ms. Verkhovskaya's report. (See Doc. 58 at 15). Dr. Aron was asked to analyze Ms. Verkhovskaya's report “to determine whether she has offered a reliable methodology for ascertaining Plaintiff's proposed class.” (Doc. 58-5 at ¶ 7). Dr. Aron's report does not indicate that she did any independent analysis of whether class members' phone numbers were residential, nor did she analyze whether consent or EBR applied to class members. (See id. at ¶ 51 ()). Dr. Aron did analyze and match phone numbers with names and dates of calls. (See id. at ¶¶ 42-50).
Dish's counsel also provided examples of calls to phone numbers that they contended could not violate the TCPA for other reasons, including calls to numbers identified as business numbers, calls where the class member had made an inquiry or application to Dish or SSN, and calls where Dish contended the class member consented to be called. (Docs. 56-18 to 56-25). Dish contended that individual issues predominated and class certification should be denied. (Doc. 56).
Discovery closed on April 17, 2015. (See Docs. 17, 18).
(Id. at 25). The Court reached similar conclusions about the other categories of calls Dish disputed because Dish's assertions about these categories of non-actionable calls were “largely speculative and unsupported by evidence” at the time of class certification. (Id. at 28-30 & n.7). The Court explained that “to the extent Dish has admissible evidence” that calls did not violate the TCPA, Dish “can present such evidence,” but the possibility of such evidence did not prevent class certification. (Id. at 30 n.7).
After the Court certified the class, Dish did not seek to reopen discovery to supplement its discovery responses about affirmative defenses, customers who allegedly did not have residential numbers, customers who were not called during the class period, or other disputed categories of calls. As best the Court can tell, Dish never identified an expert witness for the purpose of testifying about any analysis of records for the purpose of establishing lists of putative class members with whom Dish had an EBR, who consented to the calls from SSN, whose numbers were associated with businesses, or who were otherwise unable to recover.4
In November 2015, in opposition to Dr. Krakauer's motion for approval of...
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