HANCOCK v. THE CREDIT PROS INTERNATIONAL CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DYLAN HANCOCK, individually and on behalf of all others similarly situated,

Civil Action No.: 2:20-cv-02826-SRC-CLW

Plaintiff,

OPINION -against-

THE CREDIT PROS

INTERNATIONAL

CORPORATION, a New Jersey corporation,

Defendant.

I. Introduction

This is a putative class action brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Plaintiff Dylan Hancock (“Plaintiff”) alleges that defendant The Credit Pros International Corporation (“Credit Pros”), which offers consumers credit repair solutions, transmitted, without consent, pre-recorded phone calls and autodialed text messages to Plaintiff and putative class members, thereby violating the TCPA. See ECF No. 1 (the “Complaint”) at ¶¶ 10-17, 24, 29, 43, 50, 54. On behalf of himself and the putative class, Plaintiff seeks “injunctive relief, requiring Defendant to stop making pre-recorded voice sales calls to consumers without their consent, and to stop sending autodialed text messages to consumers without their consent, as well as an award of statutory damages to the members of the Class and costs.” Id. at ¶ 18.

The matter comes before the Court on Credit Pros’ motions seeking (i) to amend its answer to assert certain affirmative defenses [ECF No. 17]; and (ii) a protective order in connection with third-party subpoenas issued by Plaintiff [ECF No. 19]. Plaintiff has opposed both motions and Credit Pros has replied. ECF No. 18, 20, 21, 23, 25. The Court has carefully reviewed the parties’ submissions and resolves the matter without oral argument per Local Rule 78.1. For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Credit Pros’ motion to amend its answer and, with one minor exception noted below, DENIES Credit Pros’ motion for a protective order.

II. Credit Pros’ Motion to Amend a. Background

Having timely answered the Complaint, ECF No. 4-5, Credit Pros now seeks to amend its answer to include the following affirmative defenses (the “proposed defenses”): [16.] Plaintiff’s claims and/or the claims of the putative class Plaintiff seeks to represent fail or otherwise are banned, in whole or in part, or are limited because the subject telephone calls (including but not limited to text messages and pre-recorded calls) constitute commercial speech protected by the First Amendment of the United States Constitution and the imposition of liability for such telephone calls violates the First Amendment right of Defendant.

[17.] Plaintiff’s claims and/or the claims of the putative class Plaintiff seeks to represent fail or otherwise are barred, in whole or in part, or limited because Plaintiff and/or the putative classes Plaintiff seeks to represent lack standing to bring this action. Neither Plaintiff nor the putative class members suffered the requisite harm required to confer standing under Article III of the United States Constitution.

[18.] Defendant asserts that the Court lacks subject matter jurisdiction over this matter because the Telephone Consumer Protection Act (TCPA) is unconstitutional.

[19.] Plaintiff fails to state and cannot state a plausible claim for class relief pursuant to Fed. R. Civ. P. 23 in that, among other things, the claims Plaintiff seeks to assert cannot be common or typical of the claims of the putative class, and class relief is not superior to other available methods for fairly and efficiently adjudicating the claims Plaintiff seeks to assert. Accordingly, Plaintiff cannot satisfy the numerosity, commonality, typicality, and adequacy requirements for this case to proceed as a class action.

ECF No. 17-1 at 41-42. The proposed defenses grow from the Supreme Court’s decision in Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335 (2020) (“AAPC”), which was issued shortly after Credit Pros filed its answer. A hotly contested footnote in AAPC touches upon the TCPA’s constitutionality between 2015 and 2020, dates that overlap with this case’s relevant period. As will be discussed in more detail below, three of the first three district courts to encounter the issue, beginning with Creasy v. Charter Communs., Inc., 489 F. Supp. 3d 499 (E.D. La. 2020), read AAPC to hold that the TCPA was unconstitutional during this time. These courts therefore dismissed their respective TCPA claims on the grounds that they lacked jurisdiction to enforce an unconstitutional law. See generally Creasy; Lindenbaum v. Realgy, LLC, 497 F. Supp. 3d 290 (N.D. Ohio 2020); Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., 2020 U.S. Dist. LEXIS 236577 (M.D. Fla. Dec. 11, 2020) (the “Creasy Cases”). These decisions “led [Credit Pros’ counsel] to believe, out of an abundance of caution and to protect the Credit Pros’ rights, that [counsel] should seek leave to file an Amended Answer to assert additional defenses” grounded in the constitutionality arguments that prevailed in the Creasy Cases. ECF No. 17-3 at 2.1

Because Credit Pros moved to amend after the deadline for amended pleadings, ECF No. at ¶ 3, its motion implicates FED. R. CIV. P. 15(a)(2) and 16(b). See, e.g., Karlo v. Pittsburgh Glass Works, LLC, 2011 U.S. Dist. LEXIS 125667, at *9 (W.D. Pa. Oct. 31, 2011) (“Where, as here, the motion [to amend] was filed after the deadline set by the Court, the movant must satisfy the requirements of Rule 16 before the Court will turn to Rule 15.”).

Rule 16(b) states that “[a] schedule may be modified only for good cause and with the judge’s consent.” For purposes of Rule 16(b), “[a] finding of good cause depends on the diligence of the moving party. In other words, the movant must show that the deadlines cannot be reasonably met despite its diligence.” Globespanvirata, Inc. v. Tex. Instruments, Inc., 2005 U.S. Dist. LEXIS 16348, at *9-10 (D.N.J. July 11, 2005) (quoting Rent-A-Center v. Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) and citing FED. R. CIV. P. 16 advisory committee’s note (“The court may modify the schedule on a showing of good cause if [the deadlines] cannot be reasonably met despite the diligence of the party seeking the extension.”)); see, e.g., Konopca v. FDS Bank, 2016 U.S. Dist. LEXIS 41002, at *4 (D.N.J. Mar. 29, 2016) (“To show good cause, ‘the moving party must demonstrate that a more diligent pursuit of discovery was impossible.’”) (quoting Alexiou v. Moshos, 2009 U.S. Dist. LEXIS 81815, at *8, (E.D. Pa. Sept. 9, 2009)). “The ‘good cause’ standard is not a low threshold. Disregard for a scheduling order undermines the court’s ability to control its docket, disrupts the agreed-upon course of the litigation, and rewards ‘the indolent and cavalier.’” J.G. v. C.M., 2014 U.S. Dist. LEXIS 56143, at *4-5 (D.N.J. Apr. 23, 2014) (quoting Riofrio Anda v. Ralston Purina Co., 959 F.2d 1149, 1154-55 (1st Cir. 1992)).

Assuming good cause is shown, the Court proceeds to Rule 15(a)(2), under which “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” The “three instances when a court typically may exercise its discretion to deny a Rule 15(a) motion for leave to amend [are] when ‘(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.’” United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242, 249 (3d Cir. 2016) (quoting U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014)). The Third Circuit “has interpreted these factors to emphasize that ‘prejudice to the non-moving party is the touchstone for the denial of the amendment.’” Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Cornell & Co. v. Occupational Safety and Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)). c. Analysis i. The Nineteenth Proposed Defense

At the outset, the Court will deny as futile Credit Pros’ motion as to the nineteenth proposed defense, since the class certification challenges raised therein are not the province of an affirmative defense. See, e.g., Johnson v. Providence Health & Servs., 2018 U.S. Dist. LEXIS 84108, at *7 (W.D. Wash. May 18, 2018) (striking affirmative defenses because “[a] defendant’s assertion that a plaintiff cannot meet the Rule 23 class certification requirements does not represent an affirmative defense, but a rebuttal of the plaintiff’s class allegations.”) (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173 (N.D. Cal. 2010)); Sanchez v. Roka Akor Chi., LLC, 2015 U.S. Dist. LEXIS 19482, at *8 (N.D. Ill. Jan. 9, 2015) (“[C]lass certification is best addressed in the context of a motion that [defendant] will be able to oppose regardless of the presence of its single-sentence class certification affirmative defense.”) (striking affirmative defenses).2 The Court therefore will deny leave for Credit Pros to assert the nineteenth proposed defense and will proceed to Rule 15 and Rule 16 analyses as to the other three. ii. The Sixteenth, Seventeenth, and Eighteenth Proposed Defenses Plaintiff attacks Credit Pros’ lack of diligence in pursuing amendment under Rule 16 and the substance of these proposed defenses as futile under Rule 15. The Court rejects both arguments. 1. Credit Pros’ Diligence

The relevant dates in assessing Credit Pros’ diligence under Rule 16 are as follows: Plaintiff filed the Complaint in March 2020. The Supreme Court issued AAPC in July 2020. The first case to interpret AAPC as deeming the TCPA unconstitutional (Creasy) was issued on September 28, 2020.3 The deadline for amended pleadings was October 12, 2020. Credit Pros sought, and was granted, leave to file its motion on November 30, 2020. Credit Pros’ motion is dated January 21, 2021.

In view of this chronology, inasmuch as the sixteenth through eighteen proposed defenses grow from AAPC and the Creasy Cases, Credit Pros was diligent in seeking leave to move to amend, having done so within a reasonable time after these decisions (particularly Creasy) were handed down. Cf., e.g., Dickerson v. Keypoint Gov’t Sols., Inc., 2017 U.S. Dist. LEXIS 87049, at *9 (D. Del. June 7, 2017) (“Defendant filed this motion less than two months after plaintiff’s Additionally, even assuming the defense was proper, because it has nothing to do with the constitutional issues raised in AAPC and the Creasy Cases, Credit Pros could have raised it at any time after the Complaint was filed. Its delay in doing so therefore constitutes a lack of diligence under Rule 16. The same might be said of Credit Pros’ proposed seventeenth defense, which challenges Plaintiff’s standing to bring this action, another issue not directly discussed in the Creasy Cases; however, standing may be seen as a logical outgrowth of the Creasy Cases’ constitutional determinations and therefore will be permitted. Cf., e.g., Allen v. Wright, 468 U.S. 737, 751 (1984) (standing requires an “injury fairly traceable to the defendant’s allegedly unlawful conduct”) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)) (emphasis added).

2. Futility

The relevant Rule 15 futility analysis4 boils down to the following question, which appears to be one of first impression:5 is an affirmative defense grounded in an interpretation of AAPC that construes the TCPA as unconstitutional from 2015-2020, futile as a matter of law? The query sits squarely at the intersection of a substantive inquiry (how to construe AAPC) and a procedural one (the standards for measuring the adequacy of affirmative defenses). a. The Substantive Issue

The germane portion of AAPC may be broadly summarized as follows. Congress passed the TCPA in 1991. The Act prohibits “robocalls” to cell phones. In 2015, Congress amended the Act to include a carveout permitting robocalls made for purposes of collecting federal debt. In AAPC, the Court held the federal debt exemption was unconstitutional. See generally 140 S. Ct. at 2343-45, 2347. The conflict at the district court level arises from the following footnote 12 in AAPC: This analysis most pointedly concerns the sixteenth and eighteenth proposed defenses and more obliquely touches upon the proposed seventeenth defense, which is grounded in standing. See footnote 2, supra. Plaintiff does not directly attack the proposed standing defense as futile.

Subsequent decisions have wrestled with the question of whether the TCPA had teeth in the period when the government-debt exception was on the books (that is, from the passage of the amendment in 2015 through the AAPC decision in 2020). Their analyses center on whether, under the doctrine of severability, the non-offending portions of the law (i.e., the provisions that prohibit robocalls generally) remained effective during a time when a clause later deemed unconstitutional (i.e., the government-debt exception) was appended to them.

The Creasy Cases consign the AAPC footnote to non-binding dicta and conclude that the unconstitutionality of the exception rendered the whole of the TCPA invalid from 2015 through 2020, therefore depriving those courts of subject matter jurisdiction to hear TCPA claims arising during this time. See Creasy, 489 F. Supp. 3d at 503 (E.D. La. 2020) (referring to footnote 12 as “passing Supreme Court dicta of no precedential force” and holding that “in the years in which § 227(b)(1)(A)(iii) permitted robocalls of one category of content (government-debt collection) while prohibiting robocalls of all other categories of content, the entirety of the provision was, indeed, unconstitutional. That fact deprives the Court of jurisdiction over much of this action.”); Lindenbaum, 497 F. Supp. 3d at 296, 298-99 (“[A]t the time the robocalls at issue in this lawsuit were made, the statute could not be enforced as written. . . . Because the statute at issue was unconstitutional at the time of the alleged violations, this Court lacks jurisdiction over this matter.”); Hussain, 2020 U.S. Dist. LEXIS 236577, at *7-8 (“[A]t the time Defendants engaged in the speech at issue in this case, Defendants were subject to an unconstitutional content-based restriction. Because the Court is without authority to enforce an unconstitutional statute, the Court lacks subject matter jurisdiction over this action.”) (citing U.S. v. Baucum, 80 F.3d 539, 540-41 (D.C. Cir. 1996)). It is these interpretations that give life to Credit Pros’ defenses: Credit Pros will argue—as the defendants did, successfully, in the Creasy Cases—that Plaintiff’s and the putative class’s claims fail because they seek to enforce an unconstitutional law, something that courts lack jurisdiction to facilitate.

Most other courts to consider this issue have come out the other way, pointing to footnote and denying motions to dismiss because, in their view, AAPC falls short of wholesale invalidating the TCPA from 2015 through 2020, notwithstanding the then-extant unconstitutional government-debt exception. See cases cited in ECF 18 at 3-4; e.g., McCurley v. Royal Sea Cruises, Inc., 2021 U.S. Dist. LEXIS 16403, at *8, 11 (S.D. Cal. Jan. 28, 2021) (“[T]he Court disagrees with the district court decisions in Lindenbaum . . . and Creasy . . . . Justice Kavanagh’s statement in AAPC makes it clear that the TCPA still applies to [robocalling] even though it occurred between 2015 and 2020.”); Less v. Quest Diagnostics, Inc., 2021 U.S. Dist. LEXIS 14320, at *3 (N.D. Ohio Jan. 26, 2021) (“[T]his Court finds there is no constitutional defect to the Plaintiff’s claim under [the TCPA] for conduct taking place in the 2015-2020 period.”); Trujillo v. Free Energy Sav. Co., LLC, 2020 U.S. Dist. LEXIS 239730, at *11-12 (C.D. Cal. Dec. 21, 2020) (“The Court respectfully declines to follow the reasoning of Creasy, Lindenbaum, and Hussain. . . . [T]he robocall statute remains enforceable, at least against non-government-debt collectors, as to calls made between 2015 and 2020.”) (motions to dismiss for lack of subject matter jurisdiction denied in all three cases).6 The Third Circuit has not weighed in on this matter.

The question of whether AAPC compels dismissal of Plaintiff’s TCPA claims is a good one, with venerable federal courts supporting both sides of the ledger. And if this Court were encountering a dismissal motion, it would be charged with undertaking a similar analysis and determining which side of the post-AAPC divide it deems correct. This issue, though, is not sub judice. Instead, Credit Pros seeks only to assert the proposed defenses. Its motion therefore implicates a different analytical framework from that at issue in the matters cited above. This distinction grows from certain fundamental differences between claims and affirmative defenses. As explained in Weed v. Ally Fin. Inc., 2012 U.S. Dist. LEXIS 89713 (E.D. Pa. June 28, 2012),

Rule 8(a)(2) applies to claims (including counterclaims and cross- claims) and requires the pleader to aver “a short and plain statement of the claims showing his entitlement to relief.” By contrast, Rule 8(c), sets forth the standard for affirmative defenses and requires a party to affirmatively state any affirmative defense. In light of this distinction, . . . a party must merely state, not show, an affirmative defense. Id. at *9 (discussing Tyco Fire Products LP v. Victaulic Company, 777 F. Supp. 2d 893 (E.D. Pa. 2011)).

Because the standard for asserting affirmative defenses is different (and to be sure, lower) than that for asserting claims—i.e., claims must be “show[n]” while defenses just need to be “state[d]”—likewise, amendment of defenses involves a different (again, lower) futility standard than amendment of claims. Whereas futility of claims is generally governed by Rule 12(b)(6) (and U.S. Dist. LEXIS 16403, at *7 (disagreeing with notion that footnote 12 is dicta because AAPC was a fragmented Court, with seven Justices agreeing that “the liability of parties making robocalls who were not collecting a government debt is not negated”); Stoutt v. Travis Credit Union, 2021 U.S. Dist. LEXIS 6019, at *7-8 (E.D. Cal. Jan. 12, 2021) (although footnote 12 is dicta, it is “ultimately persuasive”) (citing cases). by extension, Iqbal and Twombly’s plausibility standard)7, affirmative defenses are futile only if they cannot satisfy Rule 12(f), which provides for the striking of an “insufficient defense”. FED. R. CIV. P. 12(f); see, e.g., Burke-Ventura v. VITELCO, 2008 U.S. Dist. LEXIS 47924, at *4 (D.V.I. June 20, 2008) (“[W]hen a party seeks to amend its answer to add an affirmative defense, [l]eave to amend an Answer should be denied if the proposed defenses are legally insufficient” under Rule 12(f)) (quoting Medical Graphics Corp. v. Harford Ins. Co., 171 F.R.D. 254, 257 (D. Minn. 1997)). This is reflected in the case law of “this Circuit . . . holding that the heightened pleading standard of Twombly and Iqbal does not apply to affirmative defenses.” FTC v. Hope Now Modifications, LLC, 2011 U.S. Dist. LEXIS 24657, at *8 (D.N.J. Mar. 10, 2011); e.g., Borough of Edgewater v. Waterside Constr., LLC, 2016 U.S. Dist. LEXIS 173261, at *21 (D.N.J. Dec. 14, 2016) (“Courts in this District have generally found the Iqbal/Twombly plausibility standard inapplicable to the pleading of affirmative defenses under Rule 8(c).”).8 To this end, the rejection of an affirmative defense is deemed “‘a drastic remedy, to be resorted to only when

Applying this framework to the amendments at issue, because these are proposed defenses, not claims, the Court need only determine if Credit Pros has “state[d]” defenses that are something more than “legally insufficient.” Consequently, the cited cases, which concerned dismissal motions and thus triggered Rule 12(b) scrutiny, are not directly on point. Instead, the Court concludes that, to the extent that the proposed defenses rely on an interpretation of AAPC that invalidates the TCPA as unconstitutional from 2015-2020, the relevant bar is passed. Three federal district courts, although representing the minority view, have conducted thorough analyses and duly concluded that such defenses not only are colorable under Rule 12(f), but in fact compel dismissal under the more searching Rule 12(b). At bottom, therefore, the proposed defenses are sufficient under the applicable standards of Rules 8(c) and 12(f). Any further analysis is the province of a motion to dismiss.

Because Credit Pros’ sixteenth through eighteenth proposed defenses are neither untimely under Rule 16 nor futile under Rule 15, the Court grants Credit Pros’ motion to assert these defenses.

III. Credit Pros’ Motion for a Protective Order a. Background

Plaintiff has served subpoenas upon three third-party vendors, Ringba, Five9, and Drips (the “vendors”), which were identified in Credit Pros’ discovery responses. Ringba provides a call tracking platform for incoming calls to Credit Pros; Five9 provides Credit Pros with its phone system; and Drips is a computer software program that allows Credit Pros to make outgoing marketing calls. Certification of Jason Kaplan, ECF No. 19-3 (the “Kaplan Cert.”) at ¶¶ 2-3. Plaintiff states that the subpoenas are geared toward obtaining “crucial information to Plaintiff’s class certification motion and Plaintiff’s and putative class members’ claims”; more specifically, that “[t]hese documents are crucial to identify class members and to demonstrate Credit Pros’ systematic course of conduct uniformly affected class members who received automated calls to their cellular telephone or residential landlines, and whether such conduct was willful.” ECF No. at 5.

Although Plaintiff subpoenaed a total of nine categories of information from the vendors, Credit Pros has consented to the vendors providing certain responses. See generally Kaplan Cert.9 Consequently, Credit Pros’ motion implicates only the following requests: 1. All records, including call logs (including prerecorded calls and text messages), billing records, and communications, associated with any account maintained by Defendant.

2. Information or data concerning all calls (including prerecorded calls and text messages) made to, by or on behalf of Defendant using your services, including call logs in native form and recordings or copies of the calls.10

3. The identity and contact information (including any databases in which such information is contained) for any and all recipients of outbound calls.11

5. All contracts or agreements with Defendant or anyone acting on their behalf.

6. If any documents responsive to the requests in this [subpoena] are in the hands of third parties, produce documents sufficient to identify those third parties. b. Standing

Before proceeding to the substance of Credit Pros’ motion, the Court must address the issue of standing. Of note, Credit Pros has moved for a protective order, not to quash, an important distinction as this question is concerned. The right to move to quash a subpoena issued to a third party is generally confined to instances “when the party claims a personal privilege in the production sought.” Aetrex Worldwide, Inc. v. Burten Distribution, 2014 U.S. Dist. LEXIS 172857, at *11-12 (D.N.J. Dec. 12, 2014) (quoting Schmulovich v. 1161 Rt. 9, LLC, 2007 U.S. Dist. LEXIS 59705 at *2 (D.N.J. Aug. 15, 2007); citing Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975)). However, [i]f a party lacks standing to move to quash or modify a subpoena, . . . [it] can move for a protective order in regard to a subpoena issued to a non-party if it believes its own interests are jeopardized by discovery sought from a third party and has standing under Rule 26(c) to seek a protective order regarding subpoenas issued to non- parties which seek irrelevant information. Id. at *12 (quoting US EEOC v. United Galaxy, 2011 U.S. Dist. LEXIS 103398 at *5 (D.N.J. Sept. 13, 2011)). Because Credit Pros contends that the subpoenas seek information that would jeopardize its own interests, and because, as a party, it has standing under Rule 26(c),12 Credit Pros has standing to challenge the subpoenas.13 c. Legal Standard

Under Rule 26(c), “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending”, whereupon “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”. The cornerstone of this inquiry is Rule 26(c)’s good cause standard. Robotic Parking Sys. v. City of Hoboken, 2010 U.S. Dist. LEXIS 27180, at *5 (D.N.J. Jan. 19, 2010) (Chesler, J.) (citing Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir. 2005)). As explained by the Third Circuit: there is good cause when a party shows that disclosure will result in a clearly defined, specific and serious injury but that broad allegations of harm are not sufficient to establish good cause. . . . [T]he party seeking protection has the burden of showing that there is good cause for it. [District courts] determine whether there is good cause by balancing the interests of the public and the parties . . . .

Shingara, 420 F.3d at 306 (discussing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). Relevant factors include

1) whether disclosure will violate any privacy interests; 2) whether the information is being sought for a legitimate purpose or for an improper purpose; 3) whether disclosure of the information will cause a party embarrassment; 4) whether confidentiality is being sought over information important to public health and safety; 5) whether the sharing of information among litigants will promote fairness and efficiency; 6) whether a party benefitting from the order of confidentiality is a public entity or official; and 7) whether the case involves issues important to the public.

Most of the disputed requests concern call logs and related information regarding calls and texts placed by Credit Pros using the vendors’ services.14 Credit Pros’ primary arguments against disclosure of these materials are that the items sought are irrelevant to this lawsuit, that Plaintiff seeks confidential information, and that these requests are overly burdensome. The Court rejects all three objections.

1. Relevance

Contrary to Credit Pros’ asseverations, production of call logs and related data is standard fare in TCPA actions. In fact, in a matter decided just over two months ago (but before the instant motion was filed), Credit Pros lost on a gambit to avoid production of the very same scope of information as here. The court in Warren v. Credit Pros Int’l Corp., 2021 U.S. Dist. LEXIS 79150 (M.D. Fla. Apr. 26, 2021) held that

Plaintiff is also entitled to receive—prior to class certification—15 the documents and information related to the call logs, transmission This category encompasses the first three requests listed above.

Credit Pros cases aside, Plaintiff cites what appears to be the overwhelming weight of authority supporting the propriety of production of call logs and related items. See ECF No. 21 at 9-10 and n.1; e.g., Medina v. Enhanced Recovery Co., Ltd. Liab. Co., 2017 U.S. Dist. LEXIS 186651, at *9 (S.D. Fla. Nov. 9, 2017) (“Outbound call lists are relevant in TCPA class actions to establish the numerosity and commonality requirements for class certification under Rule 23, as well as to prove the merits of Plaintiffs’ claims.”) (citing cases). Conversely, Credit Pros fails to cite a single TCPA case in which similar requests were denied, and on reply only passingly and in which class certification was denied, a presentation that falls short of demonstrating that pre-certification production in this TCPA matter would be improper. unconvincingly attempts to distinguish two of the roughly dozen cases cited by Plaintiff in opposition. The case law plainly supports Plaintiff’s position on this point, which the Court therefore resolves in Plaintiff’s favor.16

2. Confidentiality

Credit Pros also argues that these requests improperly seek information that is confidential and proprietary, and which qualifies as trade secrets. The Court disagrees. The parties have entered into a discovery confidentiality order that expressly addresses the confidential treatment of, inter alia, “trade secrets, competitively sensitive technical, marketing, financial, sales or other confidential business information”; “private or confidential personal information”; and “information received in confidence from third parties”. ECF No. 14 at ¶ 1. Courts encountering the objection raised here routinely overrule it where similar confidentiality orders are in place. See, e.g., Medina, 2017 U.S. Dist. LEXIS 186651, at *14 (“[T]he Court entered an order to protect disclosure of confidential information and trade secrets. . . . Accordingly, Defendant’s objection on this basis is overruled.”); Symantec Corp. v. Sidman, 2014 U.S. Dist. LEXIS 58082, at *10 (N.D. Cal. Apr. 24, 2014) (“[T]o the extent there is a trade secret in this information, that secret reasonably may be protected by the protective order already in place . . . .”).17 It is true that much of the referenced authority concerns party discovery, rather than, as here, third party subpoenas. It is equally true that “the standards for nonparty discovery require a stronger showing of relevance than for simple party discovery.” Stamy v. Packer, 138 F.R.D. 412, 419 (D.N.J. 1990) (citing cases). This distinction does not, however, mandate a different result. First, courts have reached similar conclusions in matters concerning third party subpoenas. See, e.g., Eisenband, supra; Taylor v. Universal Auto Grp. I, Inc., 2015 U.S. Dist. LEXIS 51124, at *14-16 (S.D. Ohio Apr. 17, 2015) (directing third party “to produce documents, communications, databases, and emails containing lists of the phone numbers that [third party] called on behalf of [TCPA defendant]”). Second, with the patent weight of authority supporting the notion that the information requested herein is discoverable, the Court sees no reason to conclude that this information falls within the category of materials sufficiently relevant to mandate production by a party but not relevant enough to warrant nonparty production.

In sum, Credit Pros’ confidentiality arguments are overruled.18

3. Burdensomeness/Scope

Credit Pros also contests these requests as “highly burdensome.” This argument fails for several reasons. Most fundamentally, Credit Pros does not have standing to assert a burdensomeness argument on behalf of the vendors. See, e.g., DVM Mfg., LLC v. Gallagher, 2017 U.S. Dist. LEXIS 124881, at *6 (E.D. Pa. Aug. 8, 2017) (“A party does not have standing to quash vendors producing sensitive information such as social security numbers or credit card numbers, it is free to confer with Plaintiff and the vendors as to the vendors redacting such information.

To the extent Credit Pros challenges the subpoenas’ temporal scope, that date range is a natural outgrowth of the TCPA’s four-year statute of limitations. See, e.g., Hawk Valley, Inc. v. Taylor, 2012 U.S. Dist. LEXIS 47024, at *38 (E.D. Pa. Mar. 30, 2012) (four-year statute of limitations for TCPA actions). Credit Pros first misconstrues the discoverable period when it focuses on its contact with Plaintiff occurring in February 2020. ECF No. 19-2 at 12. Irrespective of when this contact occurred, the Complaint properly alleges damages dating back four years from the date of its filing. The Court also rejects Credit Pros’ argument that it should be exempt from producing materials after the filing of the complaint. See, e.g., In re New Century, 2009 U.S. Dist. LEXIS 133786, at *7 (C.D. Cal. July 8, 2009) (“In general, courts allow discovery to extend to events before and after the period of actual liability so as to provide context.”). In sum, given that this case was filed on March 15, 2020, records covering March 15, 2016 through the present are discoverable.

As noted, Ringba provides a call tracking platform for incoming calls to Credit Pros. To this end, Plaintiff has subpoenaed certain incoming call information from Ringba. See Exhibit A to Kaplan Cert. While this information is not directly relevant to Plaintiff’s TCPA claims (which concern calls and texts allegedly transmitted by Credit Pros to Plaintiff’s phone), it is significant as to Plaintiff’s capacity to contest Credit Pros’ consent defenses. See ECF No. 5, Seventh Affirmative Defense (“Defendant asserts the doctrine of consent, express consent, and prior express consent under the Telephone Consumer Protection Act.”); ECF No. 19-2 at 5 (Credit Pros “maintains it had Plaintiff’s consent to contact him, specifically that Plaintiff originally contacted Credit Pros in November 2019 and requested information.”); e.g., Martinez v. TD Bank USA, N.A., 2017 U.S. Dist. LEXIS 101979, at *9 (D.N.J. June 30, 2017) (“If a defendant, as an affirmative defense, can show that the called party provided his or her express consent, then the TCPA claim will fail.”) (citing Van Patten v. Vertical Fitness Group, LLC, 22 F. Supp. 3d 1069, 1073 (S.D. Cal. 2014)). Credit Pros does not effectively rebut the notion that incoming call data may be relevant to rebutting its consent defenses; instead, rehashing several times that incoming call data is irrelevant to the underlying TCPA violations. The Court therefore finds that this information is discoverable. This is, again, consistent with Warren, which held that Plaintiff is entitled to documents and evidence pertaining to prior express consent and an established business relationship, particularly since Defendant raised the issue of consent as an affirmative defenses in responding to the original Complaint. . . . As such, any documents and evidence pertaining to prior express consent and/or an established business relationship are relevant to Defendant’s defenses and to the merits of Plaintiff’s case. 2021 U.S. Dist. LEXIS 79150, at *23-24 (citing Medina, 2017 U.S. Dist. LEXIS 186651, at *23 (“how [defendant] obtained the telephone number of a proposed class member is relevant evidence of whether that person provided prior express consent”); Gaines v. Law Office of Patenaude & Felix, A.P.C., 2014 U.S. Dist. LEXIS 110162, at *11 (S.D. Cal. June 12, 2014) (“The Court notes that if Defendant asserts the defense of prior express consent, it will have the burden to establish that defense. Thus, the Court finds it is not [] overly burdensome for Defendant to produce the documentation it intends to rely on to support its defense.”)). Consequently, Plaintiff’s requests to Ringba for incoming call data are proper.

Plaintiff has requested “contracts or agreements with Defendant or anyone acting on their behalf.” This demand is proper, with a caveat: such agreements are discoverable to the extent that they concern the vendors placing voice or text messages during the relevant period. See, e.g., Warren, 2021 U.S. Dist. LEXIS 79150, at *27-28 (“Defendant’s agreements . . . with third parties regarding transmission of pre-recorded messages or text messages on Defendant’s behalf during the relevant time period are also discoverable.”) (citing Grant v. Regal Auto. Grp., Inc., 2020 U.S. Dist. LEXIS 42685, at *6-7 (M.D. Fla. Mar. 12, 2020) (finding defendant’s communications with third-party vendors regarding voicemail campaigns during actionable time period to be relevant and proportional to the needs of the case); O’Shea v. Am. Solar Sol., Inc., U.S. Dist. LEXIS 23420, at *16 (S.D. Cal. Feb. 18, 2016) (ordering production of materials “concern[ing TCPA] Defendant’s relationship to other entities or persons” because “[w]hether other entities aided [defendant] in placing phone calls is relevant to [plaintiff’s] TCPA claims and discoverable.”). As in these matters, the Court holds that agreements between Credit Pros and the vendors concerning the vendors’ provision of call or text message services are relevant to Plaintiff’s claims and proportional to the needs of the case. The Court grants a protective order to the extent these requests concern agreements that are not related to the vendors placing voice or text messages during the relevant period.

Plaintiff also seeks “[d]ocuments sufficient to identify all products or services supplied by [the vendors] to Defendant or anyone acting on its behalf.” For reasons that are unclear, Credit Pros has consented to Five9 responding to this request, while as to Drips and Ringba, Credit Pros rehashes its objections to disclosure of financial information. The Court rejects these arguments.

Being that the vendors appear to have aided Credit Pros in the alleged unlawful activity underlying the Complaint, information concerning the vendors’ relationships with Credit Pros plainly falls under Rule 26(b)(1)’s umbrella. Additionally, the call logs and related materials discussed above likely will “suffic[e] to identify” the products or services supplied by the vendors to Credit Pros. To the extent any additional materials are produced, as above, Credit Pros may seek to subject them to the parties’ confidentiality order.

Finally, Plaintiff requests for the vendors to identify third parties who may be in possession of responsive documents. Credit Pros responds that it “do[es] now know what plaintiff is asking for” and defers to the Court and the vendors to address these requests. Kaplan Cert. at, e.g., 10. The Court will not issue an advisory opinion on how the vendors should respond to these items, and instead directs Credit Pros and the vendors to the subpoenas’ plain terms and to Rules 26 and to determine their responsibilities thereunder.

IV. Conclusion

An order consistent with this opinion follows.

Dated: July 13, 2021 /s/ Cathy L. Waldor

Cathy L. Waldor, U.S.M.J.