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Sanford v. AT&T Corp.

March 29, 2006


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


This matter is before the Court on the Agreed Motion to Extend Scheduling and Discovery Order filed by the parties on July 20, 2005 (Doc. 122) and the Motion to compel filed by the Plaintiffs on August 8, 2005 (Doc. 134). For the reasons set forth below, the motion to extend is GRANTED and the motion to compel is GRANTED IN PART, DENIED WITHOUT PREJUDICE IN PART, and TAKEN UNDER ADVISEMENT IN PART.


The Plaintiffs have filed a putative class action involving an alleged practice of the Defendant, AT&T, of billing persons, who are not customers, various fees, tolls, and charges for long-distance phone service. In the Plaintiffs' second amended complaint, filed on April 1, 2005 (Doc. 74), the Plaintiffs specifically allege violations of the Communications Act of 1934, 47 U.S.C. §151, et seq., the Illinois Consumer Fraud Act, 815 ILL. COMP. STAT. §505, et seq., and the Illinois Uniform Deceptive Trade Practices Act, 815 ILL. COMP. STAT. §510, et seq. Pursuant to District Judge David R. Herndon's February 8, 2006 order, the current posture of this case is as follows: The second amended complaint asserts a number of individual claims and purported class claims. This purported class includes individuals who were not customers of the Defendant but who were assessed recurring charges and fees by the Defendant. Specifically, the Plaintiffs identify the class as:

All persons who, on or after August 14, 1999, were assessed charges other than charges incurred by dialing an access code to reach the AT&T network, for service on a telephone line that was not presubscribed to AT&T during the billing period in question. (Second Amended Complaint, ¶12)

None of the class allegations have been dismissed; however, they also have not been considered by the Court as there is no pending motion to certify a class.*fn1 There are seven distinct individual claims. With respect to the individual Plaintiffs, all of Edward Bennan's, Kathleen Mittelsteadt's, and Suzanne McGee's claims remain pending. All of Deane Stokes Jr.'s claims, except for Count III, remain pending. And, only Count VI of Annie Crawford's claims remains pending.

The present motion to compel concerns discovery requests related to class certification only. In December, 2004, the Plaintiffs served their first requests for production of documents and their first interrogatories. AT&T provided responses on January 25, 2005 in which it raised a number of "general" and specific objections to the discovery requests. The Plaintiffs' motion seeks an order compelling responsive documents to requests 9, 10, 12, 14, 19-23, 33, and 40 and interrogatories 7, 8, 10, 11, 15, and 22-24.

The parties also seek an extension in the schedule in this case in light of the on-going discovery dispute. This matter currently is set for the presumptive trial month of July, 2006 (Doc. 91). As of the date of this order, all deadlines contained in the Joint Report submitted by the parties on November 22, 2004 (Doc. 59) and extended by Magistrate Judge Philip M. Frazier in a May 18, 2005 order (Doc. 90) have elapsed.


Motion to Compel

The Defendant's initial argument is that the Plaintiffs have failed "to articulate any viable class claim that would warrant the burden they seek to impose from [sic] AT&T" (Response p. 7). Each of the named Plaintiffs assert that they have had a similar experience: they were charged by AT&T for long distance services that they did not authorize and for which AT&T collected payment which it did not meaningfully refund and that AT&T continues to assess unauthorized charges for which it demands payment. The Plaintiffs allege that these practices violate federal and state law. The second amended complaint further asserts that Federal Rule of Civil Procedure 23's requirements have been met.*fn2

The issue of whether the Plaintiffs can properly assert a class action pursuant to Rule 23 is before District Judge Herndon. The only issue that is before this Court is whether the discovery that is sought, prior to class certification, is reasonable in light of the Federal Rules. The Defendant has offered no argument that the Plaintiffs are required to assert, in the second amended complaint, details beyond those required by Rule 8(a).

As an initial matter, the type of class claims asserted by the Plaintiffs will necessitate extensive discovery. The Plaintiff anticipates that the class could include over 800,000 people (See Second Amended Complaint at ¶14). The claims of these potential class members, while simply stated above, will implicate hundreds of thousands of records that are in the control of the Defendant: in fact, each of these records are in the exclusive control of the Defendant. The Defendant, presumably, maintains files on each of the persons (who could be class members) both in paper and in electronic form. Based on the affidavits attached to the Defendant's Response to the Motion to Compel (hereinafter "Response"), such information is contained in hundreds of boxes and electronic databases that are extremely large. In addition, the information maintained by the Defendant is not necessarily maintained in a manner that would allow for an easy or swift response to the Plaintiffs' interrogatories and document requests. Thus, on the one hand, the Plaintiffs are entitled to enough discovery to allow them to support a motion for class certification. The Plaintiffs can only acquire most of this discovery from the Defendant. The discovery requests necessarily will require a certain amount of cost on the Defendant in terms of manpower and time. This cost is above and beyond what would be required in an ordinary civil action filed in federal court. On the other hand, the Defendant is not required to participate in discovery that will be unduly burdensome and oppressive. The Defendant is not required to turn over all of its documents or spend months attempting to compile information in a manner that the Plaintiffs request. Thus, this Court makes the following rulings in light of, and with the awareness of, these competing interests. Interrogatories 7, 8, 10, 11, 15, 22-24.

Federal Rule of Civil Procedure 26(b)(1) provides: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." With ...

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