Taylor ex rel. Situated v. Universal Auto Grp. I, Inc.

• Decision Date: 17 April 2015
• Docket Number: Case No. 14-mc-50
• Parties: ROBERT LEE TAYLOR, SR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. UNIVERSAL AUTO GROUP I, INC., A WASHINGTON CORPORATION, D/B/A TACOMA DODGE CHRYSLER JEEP, Defendant.
• Court: U.S. District Court — Southern District of Ohio

ROBERT LEE TAYLOR, SR., INDIVIDUALLY AND ON BEHALFOF ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. UNIVERSAL AUTO GROUP I, INC., A WASHINGTON CORPORATION,D/B/A TACOMA DODGE CHRYSLER JEEP, Defendant.

Case No. 14-mc-50

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 17, 2015

Black, J.

Litkovitz, M.J.

ORDER

This miscellaneous matter is before the Court on plaintiff Robert Taylor's (Taylor) motion to compel a response to a third-party subpoena issued to non-party OneCommand, Inc.¹ (OneCommand) (Doc. 1); OneCommand's response in opposition and motion to quash the subpoena (Doc. 3); and Taylor's reply memorandum (Doc. 7).

I. Background and Procedural History

Taylor brings this putative class action against Universal Auto Group I, Inc. (Universal Auto) in the United States District Court, Western District of Washington alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227(b), and the Washington Automatic Dialing and Announcing Device statute (WADAD), Wash. Rev. Code § 80.36.400. The TCPA prohibits calls to a telephone number assigned to a cellular service using an automatic telephone dialing system or a prerecorded voice. The WADAD prohibits the use of automatic dialing and announcing devices in commercial solicitation. See Doc. 9, Ex. 2.

In his original complaint, Taylor alleged that Universal Auto d/b/a Tacoma Dodge² called his cellular telephone on July 3, 2012, and left him a voicemail suggesting that Taylor contact Universal Auto to schedule a service appointment. See Taylor v. Universal Auto Group I, Inc., No. 3:13-cv-5245 (W.D. Wash. 2013) (Doc. 1, ¶ 6.3). Taylor alleged that the July 3, 2012 call violated the TCPA and WADAD and that he and other similarly situated individuals were entitled to statutory and treble damages and injunctive relief under the TCPA and WADAD. (Id., ¶¶ 8.1-11.3).

Universal Auto moved for summary judgment on Taylor's claims and on July 1, 2014, the Washington court granted the motion in part. See Taylor v. Universal Auto Group I, Inc., No. 3:13-cv-5245, 2014 WL 2987395 (W.D. Wash. July 1, 2014). The undisputed facts before the Washington court included information about the Universal Auto telephone calls that was not explicitly alleged in Taylor's initial complaint. Universal Auto opened for business in December 2009 and shortly thereafter sent a "pre-recorded 'welcome' phone message recorded by the new owner³ to customers of the prior dealership - including [Taylor]." Id., at * 1. Taylor received five additional phone calls from OneCommand on behalf of Universal Auto on July 11, October 7, and October 11, 2011, and April 4 and July 3, 2012. Id. The Washington court found that Taylor had "knowingly released" his phone number to Universal Auto and, therefore, had given his consent to receive the 2011 and 2012 phone calls. Id., at *4-5. Accordingly, the Washington court granted summary judgment in favor of Universal Auto on Taylor's TCPA claims for all calls made by OneCommand on behalf of Universal Auto in 2011 and 2012. Id. at *5. TheWashington court further determined that the record was not sufficiently developed with respect to the 2009 call and, therefore, it declined to dismiss Taylor's TCPA claims to the extent they were based on the 2009 "welcome" call. Id. The court denied the summary judgment motion with respect to Taylor's WADAD claims, finding that the calls made by OneCommand were "unsolicited" for purposes of WADAD and, thus, Universal Auto was not entitled to judgment as a matter of law. Id. at *5-7. Taylor subsequently filed a motion for reconsideration, which was denied. See Doc. 4, Ex. C.

On July 18, 2014, Taylor filed a motion for class certification. Taylor, No. 3:13-cv-5245 (Doc. 55). The Washington court denied Taylor's motion for class certification on his TCPA claims based on the 2011 and 2012 phone calls given its prior order granting summary judgment in favor of Universal Auto on these claims. See Doc. 9, Ex. B at 7-8, 38. The Washington court also denied Taylor's motion for class certification with respect to his WADAD claims regarding the 2011 and 2012 calls because whether or not the telephone calls qualified as "commercial solicitations" under the WADAD statute required individualized evidentiary determinations such that Taylor did not meet the commonality, typicality, and predominance criteria for class certification. (Id. at 20, 22, 28, 38). The court ordered Taylor to file an amended complaint seeking to cure these defects no later than December 22, 2014. (Id. at 38).

Taylor filed an amended complaint on December 22, 2014. (Doc. 9, Ex. A). In his amended complaint, Taylor alleges that the "welcome" call he and the proposed class members received in December 2009 was an unsolicited commercial solicitation that violated the TCPA and WADAD. (Doc. 9, Ex. A, ¶¶ 6.3-6.4, 6.11, 6.14, 9.1-9.4). Taylor alleges that he and the proposed class members received similar solicitous phone calls made by OneCommand on behalf of Universal Auto from May 2011 through October 2013. (Id., ¶ 6.5). Taylor's amendedcomplaint details specific calls that occurred on July 11, October 7, October 28, 2011, and April 4 and July 3, 2012. (Id., ¶¶ 6.6-6.9). Taylor alleges that the 2009 and 2011 through 2013 phone calls made by OneCommand on behalf of Universal Auto violated the TCPA and WADAD, as well as the Washington Consumer Protection Act. (Id., ¶¶ 8.1-11.3).

Both Taylor and Universal Auto have attempted to obtain from OneCommand documents related to these alleged calls. Universal Auto served a subpoena on OneCommand in October 2013 requesting production of: (1) contracts and correspondence between OneCommand and Tacoma Dodge; (2) records related to calls made to Taylor's cellular number and another cellular number believed to belong to Taylor's wife; (3) records related to calls made to cellular telephone numbers on behalf of Tacoma Dodge; and (4) records related to calls made to Washington telephone numbers on behalf of Tacoma Dodge. (Doc. 4, ¶ 2, Declaration of Steven Coffaro, counsel for OneCommand). OneCommand represents that it produced all documents in its possession that were responsive to Universal Auto's requests as well as a list of approximately 8,000 cellular telephone numbers that received calls similar to those received by Taylor for the four-year period from April 1, 2009 to April 1, 2013.⁴ (Id., ¶ 3).

In January 2014, Taylor served his first subpoena on OneCommand seeking lists of all telephone numbers OneCommand called on behalf of Universal Auto and documents related to audits of OneCommand's compliance with federal and state laws regulating automated telephone calls, among others. See Taylor v. Universal Auto Group I, Inc., No. 1:14-mc-11 (S.D. Ohio 2014) (Taylor I) (Doc. 1, Ex. C). OneCommand filed a motion to quash this subpoena on March28, 2014. Id. Taylor withdrew the first subpoena on April 7, 2014, and this Court accordingly denied the motion to quash as moot and the matter was dismissed. See Taylor I at Docs. 2, 3.

Taylor served a second subpoena on OneCommand in June 2014. (Doc. 1, Attachment 1, Ex. 6) (Attachments to Daudt Decl.). It is this second subpoena that is at issue here. Taylor's second subpoena seeks production of 21 separate classifications of documents, including lists of persons who received calls similar to those received by Taylor, complaints from consumers about such calls, and OneCommand's internal records of the calls it made on behalf of Universal Auto. (Id.). On July 11, 2014, counsel for OneCommand wrote a letter to Taylor's counsel objecting to the subpoena. (Id., Ex. 7). OneCommand stated that it believed it had reasonably complied with Taylor's requests and that (1) Taylor's requests were unduly burdensome; (2) compliance with the requests would require the disclosure of confidential information, including proprietary business information; (3) the requested information could be obtained from Universal Auto; and (4) the subpoena included requests for irrelevant information. (Id.). Taylor filed the instant motion to compel in response to OneCommand's objections.

On February 6, 2015, the Washington court entered an order requiring Taylor and Universal Auto to submit a joint status report to address the proposed scheduling of Taylor's second motion for class certification. See Taylor v. Universal Auto Group I, Inc., No. 3:13-cv-5245 (W.D. Wash. 2013) (Doc. 80). After receiving the parties' status report, the Washington court entered an order on February 25, 2015, wherein it indicated that resolution of the instant motion to compel would impact Taylor's class certification motion and it ordered the parties to submit a follow-up status report by May 1, 2015. See Doc. 11.

II. Motion to Compel (Doc. 1)

Taylor moves for a Court Order pursuant to Fed. R. Civ. P. 45(d)(2)(B)(i) compelling OneCommand to provide responses to the 19⁵ categories of documents requested in the subpoena.⁶ Taylor asserts that his requests seek documents that are relevant to his claims against Universal Auto, Universal Auto's asserted defenses, and the class certification motion currently pending before the Washington federal court. Taylor further asserts that the requests are narrowly tailored in that he only seeks documents within the time period relevant to the class action claims. Taylor contends that to the extent any confidential information is requested, OneCommand's concerns can be addressed by the protective order currently in place in the Washington litigation. Taylor concludes that because these documents are relevant and sought for good cause, namely, to assess the viability of certifying his proposed class, his motion to compel should be granted. (Doc. 1).

III. Motion to Quash (Doc. 3)

OneCommand moves to quash Taylor's subpoena because it seeks documents that are irrelevant and compliance would be burdensome. OneCommand asserts that because it is a non-party to the Washington litigation,...