Lofton v. Verizon Wireless (VAW) LLC
2015 U.S. Dist. LEXIS 79412
N.D. Cal.2015Background
- Plaintiff John Lofton sued Verizon Wireless (VAW) LLC alleging third‑party debt collector Collecto, Inc. placed multiple calls to his cell phone in violation of the California Invasion of Privacy Act and the TCPA; case referred to Magistrate Judge for discovery disputes.
- Major discovery disputes center on production of call detail records (CDRs/call logs) from Collecto and other debt‑collector vendors, privilege assertions, and completeness/timeliness of disclosures (including omission of prior litigation, Powell v. Collecto).
- Collecto programmed a dialer to purge CDRs after two years and changed that practice only in Sept. 2014; Plaintiff alleges concealment and spoliation of CDRs and sought sanctions and evidentiary relief.
- The District Court previously dismissed TCPA claims as to non‑Collecto vendors (subject to future motions); Magistrate limited discovery regarding non‑Collecto vendors but required Verizon to identify which vendors recorded calls for IPA claims and to attempt to have vendors consent to litigate subpoenas in Northern District.
- The Magistrate found multiple discovery deficiencies: missing/late privilege logs, misrepresentations about existence of CDRs, omission of Powell litigation, inadequate 30(b)(6) preparation, and destruction of some CDRs — and ordered partial relief (production, privilege logs, cost‑bearing reconstruction of archived data, limited sanctions and fee awards).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope/timeframe for TCPA class discovery (seek back to June 2008) | Lofton: four‑year TCPA limitations period supports discovery back to June 2008 (pre‑complaint conduct is relevant) | Verizon: discovery need only run from Nov 2009 because TCPA claims were not pled until the 2013 TAC (Rule 15) | Court: Discovery back to June 2008 is relevant and permissible for TCPA class discovery; compelled accordingly where responsive |
| Privilege logs and withheld documents (including Powell materials) | Lofton: Verizon/Collecto failed to timely produce privilege logs and omitted Powell; so privileges may be waived and documents must be produced | Verizon/Collecto: asserted privileges and settlement confidentiality; argued no waiver and limited responsive privileged material | Court: declined per se waiver but ordered production of privilege logs and in‑camera review for Powell‑related docs by deadline; failure may result in waiver |
| Existence, concealment, and spoliation of call detail records (CDRs) | Lofton: Defendants misrepresented absence of CDRs, withheld knowledge, and allowed deletion of relevant CDRs — warranting spoliation sanctions and evidentiary relief | Verizon/Collecto: produced alternate account notes and archived data; contend no bad faith and that produced records suffice | Court: found bad‑faith misrepresentation and spoliation (duty to preserve), ordered Collecto/Verizon to fund reconstruction of archived data and imposed limited monetary sanctions; rejected extreme remedies like default or crime‑fraud vitiation |
| Third‑party vendor control and Rule 45 subpoenas | Lofton: Verizon has contractual/audit rights and should produce vendor records and/or prevent vendors from objecting; Verizon interfered with subpoenas | Verizon: vendors are independent, discovery from non‑Collecto vendors is premature given pleading posture and motions to dismiss; no evidence Verizon instructed vendors to ignore subpoenas | Court: declined to compel broad vendor production now (due to district court rulings), ordered Verizon to identify which vendors recorded calls and to seek vendors' consent to litigate subpoenas in NDCA; no sanctions for subpoena interference absent proof |
| Collecto 30(b)(6) witnesses and preparation | Lofton: Collecto's designees were unprepared on EOS 491‑95 methodology and prior litigation, warranting sanctions and further depositions | Collecto: witnesses testified in good faith; sanctions unwarranted | Court: found deponents inadequately prepared; ordered two additional 30(b)(6) depositions at Collecto's expense but declined broader sanctions tied solely to those failures |
Key Cases Cited
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (inherent power to impose sanctions for bad‑faith litigation conduct)
- Burlington N. & Santa Fe Ry. Co. v. United States, 408 F.3d 1142 (9th Cir. 2005) (timeliness and substance of privilege logs assessed holistically; failure to log does not automatically waive privilege)
- Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625 (9th Cir. 2005) (district court discretion on relevancy in discovery)
- Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (sanctions for failure to obey discovery orders under Rule 37)
- Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993) (spoliation doctrine and courts' power to fashion evidentiary sanctions)
- Halaco Eng'g Co. v. Costle, 843 F.2d 376 (9th Cir. 1988) (factors governing extreme sanctions such as dismissal or default)
- Apple Inc. v. Samsung Elecs. Co. Ltd., 888 F. Supp. 2d 976 (N.D. Cal. 2012) (spoliation standard and relevance requirements for sanctions)