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M.D. Fla. Orders Automated Collection of Auto Dialer Data

Last week, Judge Thomas B. Smith issued a decision in Clark v. FDS Bank, 6:17-cv-692-Orl-41TBS, 2018 U.S. Dist. LEXIS 190518 (M.D. Fla. Nov. 7, 2018), granting the Plaintiff's motion to compel the production of phone data. This is a class action suit brought for the violation of the Telephone Consumer Protection Act for using an automated telephone system to call cell phones in an effort to collect on credit card debt.

The Defendants contended that while they can download data on the phone numbers called, the number of calls made to those numbers, and the date, time and duration of the calls, they can only produce other information requested by the Plaintiff (where the numbers were obtained; whether the call produced a live answer, prerecorded message, or wrong number notification; whether the recipient asked not to call again; and information on when payments were made) by a manual search of records. 76 minutes were required to collect information for 28 accounts. It took one assistant 135 minutes to redact personal information from 17 accounts, and a paralegal 120 minutes to redact personal information from another 11 accounts. The total cost of the review was estimated to be between $1.5 - $1.8 million.

The Plaintiff had Jeffrey A. Hansen, a data analyst from Hansen Legal Technologies file a declaration attesting to his familiarity with the auto dialing system used by Defendants, and that it should take less than an hour to export the data requested by the Plaintiff. Attached to Hansen's declaration was a declaration by a certified computer forensic examiner (filed in another case) stating that often even IT professionals responsible for systems holding records of phone calls are unaware that the records can be searched and exported without special programming and in a short period of time. "Suppose a dialer database has 100 million records to search for text mentioning the words 'wrong number'. Such a search may take several hours on a particular unindexed system that is designed for day-to-day business use and not optimized for such a free-text search. But that same search can take just seconds on an optimized system like I operate for forensic analysis, once the data is loaded onto that system. . . I will be able to efficiently develop an objective algorithm to identify records containing DNC requests and wrong number calls." Id. at *11-12, quoting Doc. 122-2 at 91, 97-98.

The Court ordered the parties to hold a Rule 26(f) conference in 21 days in order to arrange for Hansen to search the Defendants' business records. The Court required the parties to sign a confidentiality agreement and directed, "the use of anonymizers to conceal account holders' identities and other personal information." Id. at *13-14. It left open to the parties to decide whether Hansen should work with mirror images of the data or use another methodology to search the data.

If the parties cannot come to an agreement in 35 days, the Court will dictate the procedure to be followed at an evidentiary hearing.

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