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Diegert v. Receivables Performance Management, LLC

United States District Court, W.D. New York

January 26, 2017



          JEREMIAH J. MCCARTHY United States Magistrate Judge

         This action has been referred to me by District Judge Lawrence J. Vilardo for supervision of non-dispositive pretrial proceedings [36].[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] Before me is plaintiff's motion [28] pursuant to Fed.R.Civ.P. (“Rules”) 36 and 37, seeking an order: (1');">1) compelling defendant Receivables Performance Management (“RPM”) to answer plaintiff's document requests and interrogatories without objection; (2) deeming RPM to have admitted each of plaintiff's requests for admission; and (3) awarding attorney's fees and costs. An evidentiary hearing was held on November 3, 201');">16 [54]. For the following reasons, the motion is granted in part and denied in part.


         Plaintiff Matthew Diegert commenced this action on December 1');">18, 201');">14, seeking recovery under the Fair Debt Collection Practices Act (“FDCPA”), 1');">15 U.S.C. §1');">1692, et seq., and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, et seq., for allegedly unauthorized “robocalls” made by RPM to plaintiff's cell phone, resulting in charges to his account. Complaint [1');">1].

         On December 30, 201');">15, plaintiff served RPM with interrogatories pursuant to Rule 33, a document request pursuant to Rule 34, and requests for admission pursuant to Rule 36. Mauro affidavit [28-1');">1], ¶3; Fjermedal affidavit [30], ¶6. Following unsuccessful attempts to obtain responses to these demands (Mauro affidavit [28-1');">1], ¶4), plaintiff filed this motion to compel on March 6, 201');">16, arguing that “a failure to serve timely responses to interrogatories and document requests serves as a waiver of objections”, and that RPM's “failure to respond to the Requests for Admission within the statutory time period serves as an automatic admission of the requests”. Plaintiff's Memorandum of Law [28-2], p. 2. RPM served its responses on March 22, 201');">16, containing numerous objections. Fjermedal affidavit [30], ¶1');">10; [30-1');">1]. While admitting that it “delayed in serving its responses to [plaintiff's] discovery demands and Requests for Admission” (Fjermedal affidavit [30], ¶1');">15), RPM attempted to justify its delay by stating that “the parties were engaged in attempts to resolve this matter through mediation under the Court's ADR Plan”. Id., ¶1');">16.

         Plaintiff responded, arguing that RPM's use of boilerplate objections “should be deemed a waiver of any objections to the request”. Plaintiff's Memorandum of Law [32], p. 2. Plaintiff also noted that RPM had failed to produce a “key document”, namely a “dialer report”. Mauro affidavit [32-1');">1], p. 2, n. 1');">1. During a telephonic status conference on August 3, 201');">16 [38], plaintiff's attorney explained that the dialer reports would show the duration of phone calls between RPM and plaintiff. RPM's attorney responded that the reports were not in RPM's possession, and that he was attempting to obtain them from RPM's previous telephonic systems vendor, Noble Systems, Inc.

         By letter dated August 25, 201');">16 [39], he stated that “[a]fter numerous attempts, our office has confirmed that the Noble dialer report can only be run by Noble, which no longer has the requested records on its systems. Moreover, Noble is unable to recreate those records, which would have been part of a rolling report. Such records are deleted from its system on a daily basis after one year. In the instant case, discovery demands were interposed by plaintiff's counsel on December 30, 201');">15. By that date, the call logs had already been removed from Noble's system. Noble has advised RPM that it cannot recreate the dialer logs.”

         During a status conference later that day, the parties agreed that RPM would supplement its responses to plaintiff's discovery motion [40, 41');">1]. On September 26, 201');">16, RPM filed supplemental responses to plaintiff's document requests, interrogatories, and requests for admission [44-1');">1]. In a supplemental declaration filed that same day [44], RPM's attorney repeated the assertions contained in his August 25 letter relative to RPM's inability to obtain the dialer logs from Noble Systems. Plaintiff's attorney disputed this assertion, attaching a declaration of RPM's CEO, Howard George (filed in another case), in which Mr. George stated that “RPM has the ability to generate ad hoc reports of outbound calling activity. Our so-called Noble Report is a log of outgoing calls, showing the date, time and duration of the call”. George declaration [45-1');">1], ¶8. Plaintiff's attorney further stated that “on September 30, 201');">16, I spoke directly with the General Counsel of Noble, Mr. Banks Neil, Esq., who confirmed . . . that Noble merely sold the robo-dialing system to the Defendant; and that Noble is in no way involved with making or storing evidence of the Defendant's robo-dialing campaigns. The Defendant's apparent misrepresentations to Plaintiff's counsel and the Court on this issue is very concerning.” Mauro declaration [45], ¶6.

         By Text Order dated October 1');">14, 201');">16 [47], I advised the parties that I would schedule a hearing to address “the conflicting representations by the parties as to whether defendant is in (or had) possession of those records. To resolve that issue, Banks Neil, Esq., General Counsel of Noble, Howard George, CEO of defendant, or other representatives of these companies with knowledge of the issue shall be available to testify at the hearing.” The hearing was subsequently scheduled for November 3, 201');">16 [50].

         Two days before the hearing, RPM's Director of Information Technology, Lukasz Wojnowski, submitted a declaration [51');">1] “to provide further clarification as to our counsel's prior declaration which asserted that the Noble dialer report can only be run by Noble (not RPM) and that Noble no longer has the requested records on its systems” (id., ¶2). He stated that “the above assertion is technically inaccurate as RPM can request the generation of the Noble dialer report for a limited one year period . . . . After the one year period, however, RPM cannot access or replicate those records” (id.). He further stated that “[t]he software has the ability to generate a report pursuant to the customized settings set by RPM. RPM's software settings allowed an agent to generate a call report showing . . . the duration of each call within the preceding one year from the date of the call. Once the call is over a year old, it no longer populates on the report” (id., ¶4).

         The hearing was conducted telephonically, and was digitally recorded. Noble Systems' Chief Information Officer, John Simpson, accompanied by Noble Systems' General Counsel Banks Neil, testified on behalf of Noble Systems, and Mr. Wojnowski testified on behalf of RPM. Mr. Simpson testified that RPM purchased software from Noble Systems, that Noble Systems was not involved with RPM's making of calls to consumers after the software was sold, and that Noble Systems never stored records regarding phone calls made by RPM, nor did it make calls for RPM. He further testified that the Noble Systems software can generate a “call history report”, and identified an excerpt from the User Manual [55-1');">1] detailing how the report can be generated.

         Mr. Wojnowski testified that although RPM had used the Noble Systems software for making the phone calls relevant to this action, it was no longer using it at the time of the hearing. He admitted that Noble Systems did not store information, and that RPM could itself generate a call history report using the Noble Systems software, as indicated in the User Manual excerpt [55-1');">1]. He testified that calls could not be accessed more than one year prior to the date of the report, but did not know why. When shown another call history report dated August 1');">10, 201');">11');">1 [55-2], he could not explain why that report showed calls dating back to August 5, 201');">10, more than one year prior to the date of the report. He believed that RPM attempted to create a call history for calls in this case using the Noble Systems software, but did not know the result of that attempt. He stated that RPM's general counsel, Mark Case, would be more familiar with that issue. He did not know RPM's policy as to preserving information once litigation is commenced.


         A. Call ...

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