1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM LOFTUS, et al., Case No. 19-cv-01608-RS (KAW)

8 Plaintiffs, ORDER REGARDING DISCOVERY 9 v. LETTERS

10 SUNRUN INC., et al., Re: Dkt. No. 75, 76 11 Defendants.

12 13 Plaintiffs filed the instant case against Defendants Sunrun Inc. and Media Mix 365, LLC 14 (“Media Mix”), alleging that Defendants had violated the Telephone Consumer Protection Act 15 (“TCPA”) through its unsolicited telemarketing. (First Amended Compl. (“FAC”) ¶ 1.) Plaintiffs 16 also allege that Defendants violated the California Invasion of Privacy Act (“CIPA”) by recording 17 cellular communications without consent. (Id.) Defendant Media Mix is now in default. (Dkt. 18 No. 63.) 19 On September 10, 2019, Plaintiffs filed a motion for a temporary restraining order 20 requiring Defendant Media Mix to provide discovery responses to Plaintiffs’ requests for 21 production (“RFPs”) and interrogatories. (Dkt. No. 64.) In support, Plaintiffs explained 22 Defendant Media Mix “claims that it has ceased all operations and cannot continue to operate as a 23 business.) (Id. at 1 (internal quotation and emphasis omitted).) On September 11, 2019, the 24 presiding judge denied the motion for a temporary restraining order and referred the discovery 25 dispute to the undersigned. (Dkt. No. 66.) 26 On September 23, 2019, Plaintiffs filed a request for a telephonic discovery conference 27 regarding Defendant Media Mix’s failure to provide discovery. (Dkt. No. 72.) The Court denied 1 to withdraw,1 “a telephonic discovery conference does not appear to be productive as Defendant 2 Media Mix cannot meaningfully participate.” (Dkt. No. 73 at 1-2.) The Court ordered Plaintiffs 3 to instead file a discovery letter. (Id. at 2.) 4 On September 27, 2019, Plaintiffs filed a discovery letter seeking Defendant Media Mix’s 5 responses to Plaintiffs’ RFPs and interrogatories. (Dkt. No. 75.) On October 2, 2019, Plaintiffs 6 filed an amended discovery letter, correcting a typo. (Discovery Letter, Dkt. No. 76.) 7 Having reviewed the discovery letters, the Court GRANTS Plaintiffs’ request for 8 discovery. In general, Rule 26(d) provides that “[a] party may not seek discovery from any source 9 before the parties have conferred as required by Rule 26(f), except . . . when authorized by these 10 rules, by stipulation, or by court order.” In deciding whether to allow early discovery, courts 11 apply a good cause standard. Twitch Interactive, Inc. v. Johnston, Case No. 16-cv-3404-BLF, 12

, at *5 (N.D. Cal. Mar. 27, 2017); Semitool, Inc. v. Tokyo Electron 13 Am., Inc.,

(N.D. Cal. 2002). Courts have found good cause “where a 14 defendant has failed to appear, resulting in the entry of default against the defendant . . . .” Twitch 15 Interactive, Inc.,

, at *5. Thus, in Twitch Interactive, Inc., the 16 district court permitted early discovery on the defaulting defendants and third-party entities, 17 explaining that the “proposed areas of discovery are related to the scope of the [defendants’] 18 alleged unlawful activities and the revenue generated by those activities.” Id. at *8. Such 19 discovery was “reasonably calculated to lead to evidence in support of a motion for default 20 judgment and a request for damages.” Id. Moreover, the district court acknowledged that the 21 plaintiff “cannot conduct traditional discovery as the [defendants] refused to participate in this 22 action.” Id. 23 Here, Defendant Media Mix likewise has defaulted, and its counsel has withdrawn. (See 24 Dkt. No. 82.) Thus, absent relief from the court, Plaintiffs will be unable to obtain discovery from 25 Defendant Media Mix. The inability to obtain discovery will not only affect Plaintiffs’ case 26 against Defendant Media Mix, but their case against Defendant Sunrun, as Plaintiffs allege that 27 1 Defendant Media Mix made illegal telemarketing calls to Plaintiffs on Defendant Sunrun’s behalf. 2 |} (FAC 4 90.) To not allow discovery of Defendant Media Mix will therefore also affect Plaintiffs’ 3 case against Defendant Sunrun, as Defendant Media Mix may have relevant information 4 || pertaining to its co-defendant. 5 Having reviewed the proposed discovery requests, the Court finds that the discovery is 6 || tailored to the facts of the case and causes of action, including identifying the prospective class, 7 establishing the number of TCPA violations, and determining Defendant Sunrun’s liability for the 8 || telemarketing at issue. Thus, the Court GRANTS Plaintiffs’ request and ORDERS Defendant 9 || Media Mix to respond to Plaintiffs’ discovery within 30 days of the date of this order, with the 10 || below additional requirements for RFP Nos. 45 and 46. 11 RFP Nos. 45 and 46 seek expert reports and unredacted papers filed by any party in any 12 || TCPA case in which Defendant Media Mix was a party. To the extent such requests seek the 13 || confidential information of third parties, Defendant Media Mix shall identify for Plaintiffs any 14 || documents that contain confidential information. Plaintiffs shall then meet and confer with the 3 15 third parties to determine whether the information can be produced. If Plaintiffs and third parties a 16 are unable to come to an agreement, the third parties shall file a motion for a protective order 3 17 within 30 days of the meet and confer. Plaintiffs shall provide a copy of this order to the third 18 || parties during the meet and confer process. 19 IT IS SO ORDERED. 20 Dated: October 16, 2019 .

27 United States Magistrate Judge 23 24 25 26 27 28