United States District Court, C.D. Illinois, Springfield Division
UNITED STATES OF AMERICA, and the STATES of CALIFORNIA, ILLINOIS, NORTH CAROLINA, and OHIO, Plaintiffs,
DISH NETWORK, LLC, Defendant,
SUE E. MYERSCOUGH, District Judge.
This matter comes before the Court on Plaintiff States of California, Illinois, North Carolina, and Ohio's (Plaintiff States) Motion in Limine Regarding Admission of Supplement Under Rule 26(e) (d/e 489) (Motion 489), and Defendant Dish Network, LLC's (Dish) Cross-Motion to Strike Plaintiff's Post-Discovery Expert Disclosures, Preclude the Use of Any Related Evidence at Trial, and for Cost and Attorneys' Fees (d/e 491) (Motion 491) (collectively "Motions"). For the reasons set forth below, the Motions are ALLOWED in part and DENIED in part.
The Plaintiffs allege that Dish is liable for millions and millions of telemarketing telephone calls that violated the Telemarketing and Consumer Fraud and Abuse Prevention Act 15 U.S.C. § 6105 (Telemarketing Act); the Federal Trade Commission Act, 15 U.S.C. § 45 (FTC Act); the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA); the Federal Trade Commission (FTC) regulation entitled the Telephone Sales Rule promulgated under the Telemarketing Act and the FTC Act, 16 C.F.R. Part 310 (TSR); and the Federal Communications Commission (FCC) regulation promulgated under the TCPA, 47 C.F.R., 64.1200 (FCC Rule); and comparable state laws of the Plaintiff States. Second Amended Complaint and Demand for Jury Trial (d/e 257) (Second Amended Complaint), Counts I through XII.
The Plaintiff States allege claims for civil penalties for illegal calls to residents of the Plaintiff States in violation of the TCPA and certain of each State's consumer protection statutes. Id., at 25-28, Prayers for Relief. The TCPA authorizes State Attorneys General to bring actions on behalf of the residents of such states for violations of the TCPA or the FCC Rule. Each Attorney General can seek injunctive relief and secure actual damages or $500 per violation, or both. The Attorneys General could also recover triple the penalties, or $1, 500.00 per violation, if the defendant willfully or knowingly violated the TCPA. 47 U.S.C. § 227(g).
Both sides used experts who relied on telephone area codes to determine whether a call was made to a resident of a Plaintiff State. The Plaintiff States' expert Dr. Erez Yoeli, Ph.D., relied on area codes of the telephone numbers called to determine the residency of the recipients. E.g., Plaintiffs' Summary Judgment Exhibits (d/e 342), PX 38, Declaration of Dr. Erez Yoeli, Appendix C, Revised Rebuttal Report by Dr. Erez Yoeli, dated December 14, 2012, at 10-12, Tables 5 through 9. Dish's expert John Taylor similarly used area codes to determine residency. Taylor opined that calls were intrastate calls based on the area codes of the numbers called. E.g., Plaintiffs' Summary Judgment Exhibits (d/e 342), PX 26, Revised Expert Report of John T. Taylor dated September 20, 2012, at 4-5. Taylor also used area codes to identify the number of calls to residents of the Plaintiff States. E.g., Plaintiffs' Summary Judgment Exhibits (d/e 342), PX 28, Rebuttal Report of John T. Taylor dated November 6, 2013, at 3, 9-17, Tables 2a through 9c.
The parties' expert witnesses also prepared opinions related to whether the recipients of Dish telemarketing calls were residential telephone subscribers. The TCPA and the FCC Rule prohibited certain telemarketing calls to "residential telephone subscribers, " including calls to residential telephone subscribers whose telephone numbers were registered on the National Do Not Call Registry (Registry). See Opinion entered December 11, 2014 (d/e 445) (Opinion 445), at 24; 47 U.S.C. § 227(c)(1); 47 C.F.C. § 64.1200(c)(2). Dish's expert, Dr. Robert Fenili, Ph.D., analyzed the make-up of the telephone numbers registered on the Registry. Dr. Fenili opined that by 2011, over half of the numbers on the Registry were wireless telephone numbers, only 28.2% were numbers for residential landlines, and 12.2% were business landline numbers. Dish Summary Judgment Exhibits (d/e 348), DX 189, Expert Report of Dr. Robert N. Fenili dated July 26, 2012, at 10 Table 1b.
In response, Dr. Yoeli analyzed the make-up of the telephone numbers that Dish and certain of its authorized retailers called. Dr. Yoeli took random samples of sets of call records that were produced in discovery. The call records sampled Dish call records for calls from 2003 to 2007, a second set of Dish call records from 2007 to 2010, and call records from four authorized retailers. Plaintiffs' Summary Judgment Exhibits (d/e 342), PX 38, Declaration of Dr. Erez Yoeli, Appendix C, Revised Rebuttal Report by Dr. Erez Yoeli, dated December 14, 2012, at 8-9. The samples were sent to Richard Stauffer at PossibleNOW, Inc. (PossibleNOW). PossibleNOW maintains current and historical databases that contain directory information about telephone numbers and about numbers on the Registry. Both sides in this case have used PossibleNOW's services. Taylor and Stauffer both work for PossibleNOW. PossibleNOW is the subcontractor that maintains the Registry for the FTC. Dish also employs PossibleNOW to assist it in complying with state and federal do-not-call telemarketing laws and regulations. See Opinion 445, at 71-73, 141-43.
Stauffer ran Dr. Yoeli's samples through PossibleNOW's directory databases to identify the telephone numbers in the samples that were wireless, business, residential, or Voice over Internet Protocol (VoIP) numbers. Stauffer explained in his deposition that PossibleNOW collected and maintained current and historical directory information. Stauffer testified that the directory information for residential landlines included the residential address where the phone was located. Plaintiffs' Summary Judgment Exhibits (d/e 380), PX 356, Richard Stauffer Deposition, dated November 28, 2102, at 353.
The PossibleNOW databases contained identifying information for many, but not all, of the sample telephone numbers that Dr. Yoeli provided. The results from the 2007-2010 call records showed that 94% of the identified calls in the sample were directed to residential landlines and 69% of all calls were directed to residential landlines. The results from the 2003-2007 call records showed that 85% of the identified calls in the sample were directed to residential landlines and 67 % of all calls were directed to residential landlines. Results were also secured for each of the samples from the authorized retailers' call records. Plaintiffs' Summary Judgment Exhibits (d/e 342), PX 38, Declaration of Dr. Erez Yoeli, Appendix C, Revised Rebuttal Report by Dr. Erez Yoeli, dated December 14, 2012, at 9.
All discovery closed in this matter on December 19, 2013. Text Order entered March 21, 2013, as modified by Text Order entered November 7, 2013.
On February 5, 2014, Taylor prepared another declaration. Defendants Summary Judgment Exhibits (d/e 368), DX 238, Declaration of John Taylor dated February 5, 2014. In paragraph 10 of that declaration, Taylor stated, in relevant part:
There is an additional factor, however, which renders any attempt to identify calls placed to a consumer within any particular state a matter of guesswork. In his work, Dr. Erez Yoeli assumed that the area code associated with a number dialed by DISH or one of its retailers actually rang in the state to which the area code was assigned. In performing my work in this case, I relied on Dr. Yoeli's assumption out of necessity (since I was retained to critique his work), but it is not a valid assumption. First, to the extent that the... calls were made to cell numbers, and given that those numbers are not portable, i.e., they can be retained by the cell customer no matter how many times they change providers or move locations, there is no guarantee that a cell number with a Springfield, Illinois area code, for example, actually rings in Springfield, much less Illinois. In addition, with the proliferation of wireless family plans, even wider distribution of area codes outside of their original state exist ( e.g., one member buys the shared plan in one state with a designated area code - as one member of the family goes away to school out of state, joins the armed services, or relocates for some other reason, the telephone number with the original area code goes with the family member). In the end, while the question of where the telephone was purchased and the contract administered can be determined, the question of where the telephone actually rings cannot.
Id., ¶ 10 (internal citation omitted) (emphasis in the original).
The Plaintiffs objected to Taylor's February 5, 2014, Declaration. Dish responded that paragraph 10 did not contain any expert opinions; rather, the paragraph only stated "predicate information included to give context to Mr. Taylor's subsequent testimony." Reply in Support of Motion to File Corrected DX-238 (d/e 428), at 3-4. The Court accepted Dish's characterization ...