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Allis Lindsey v. Pnc Mortgage

May 30, 2012

ALLIS LINDSEY,
PLAINTIFF,
v.
PNC MORTGAGE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART (1) PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTARY EVIDENCE AND ENFORCE THE SUBPOENA ISSUED TO T-MOBILE ON 9/30/11 AND (2) T-MOBILE USA, INC.'S ) MOTION TO QUASH SUBPOENA ) AND FOR ATTORNEYS' FEES

Before the Court are (1) Plaintiff Allis Lindsey's Motion to Compel the Production of Documentary Evidence and Enforce the Subpoena Issued to T-Mobile on 9/30/11 (Doc. 66); and (2) T-Mobile USA, Inc.'s Motion to Quash Subpoena and for Attorney's Fees (Doc. 75). The Court heard these Motions on February 24, 2012 and accepted supplemental briefing thereafter. After careful consideration of the Motions, the supporting and opposing memoranda, and the arguments of counsel, the Court GRANTS IN PART and DENIES IN PART the foregoing Motions. As discussed below, the Court declines to compel the production of information requested by Plaintiff and denies the parties' requests for attorneys' fees and/or sanctions.

FACTUAL BACKGROUND

On February 17, 2011, Plaintiff filed the instant action against various Defendants. (Complaint at 1.) She alleged that after entering into a mortgage with PNC Mortgage, she received a phone call from a blocked number, relating to her mortgage with PNC Mortgage. That caller allegedly left Plaintiff a profane voice message, which she claimed caused her severe emotional distress, humiliation, and mental suffering. (Id. ¶¶ 10-11.) Based on that voice message, Plaintiff sued various Defendants for violation of the Fair Debt Collection Practices Act, for unfair and deceptive trade practices, and for intentional infliction of emotional distress. (Id. ¶¶ 15-26.) Plaintiff did not name as a Defendant the person who left the voice message.

After the Court granted Defendants' Motion to Dismiss and Motion for Summary Judgment, Plaintiff sought to name as a Defendant the person who left the profane voice message. However, because that caller's phone number was blocked, Plaintiff attempted to obtain the identity of the caller by serving T-Mobile with a subpoena. The subpoena requested production of "All phone records placed and received by T-Mobile phone number (808)554-1076 from January 2010 to March 2010, including but not limited to records of all blocked calls, made and received by and at this number." (Ex. A attached to Doc. 66.) Service of the subpoena on T-Mobile "was effectuated via telefax on 9/30/2011." (Ex. B attached to Doc. 66.)

After counsel for Plaintiff and T-Mobile corresponded via email, T-Mobile produced some of the requested information on November 22, 2011. (Ex. 8.) As reflected in Exhibit 8, T-Mobile did not disclose the phone number of any incoming blocked calls; rather, the call log states "Blocked NBR" instead of the actual phone number of any blocked calls. (Id.) Although Plaintiff was not satisfied with the produced information because it did not identify the blocked phone numbers, the information did assist Plaintiff in determining the exact date and time of the profane phone call. (Plaintiff's Motion at 5-6.) Although Plaintiff initially thought the phone call was made on February 19, 2010, based on the information produced by T-Mobile, she now believes that "the voice message was left by the blocked number received on February 18, 2010 at 9:46 AM." (Id. at 6.)

At the hearing on the pending Motions, counsel for Plaintiff stated that, although her subpoena requested phone records from January through March 2010, she now seeks only the phone number for the blocked call made on February 18, 2010 at 9:46 a.m.

DISCUSSION

Plaintiff seeks the requested information pursuant to Federal Rules of Civil Procedure ("FRCP") Rules 26(b)(1) and 45(d)(1)(A). Rule 26(b)(1) allows for "discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Pursuant to Rule 45(d)(1), a party shall produce electronically stored information as it is kept in the ordinary course of business unless that information is "not reasonably accessible because of undue burden or cost." The parties dispute whether the Court should compel the production of the phone number of the blocked call made on February 18, 2010 at 9:46 a.m.

I. Applicability of Regulation 1601

The parties dispute whether 47 C.F.R. § 64.1601 ("Regulation 1601")

bars T-Mobile from disclosing the phone number of the blocked call made on February 18, 2010 at 9:46 a.m.. According to that Regulation, common carriers like T-Mobile shall recognize "a caller's request that the [calling party number] not be passed on an interstate call." 47 C.F.R. § 64.1601. Further, "No common carrier . . . that delivers [a calling number] may override the privacy indicator associated with an interstate call." Id. Moreover, carriers "must arrange their . . services . . . in such a manner that when a caller requests that the [calling number] not be passed, a carrier may not reveal that caller's number or name, nor may the carrier use the number or name to allow the called party to contact the calling party." Id. (emphasis added).

The language of Regulation 1601 clearly forbids common carriers like T-Mobile from revealing a caller's name or number when that caller requests that his or her phone number "not be passed" on an interstate call. Regulation 1601(d) provides certain exemptions, including calls originating from payphones and law-enforcement requests for call-tracing, but neither party advocates that any of the enumerated exemptions apply in this case. Consequently, pursuant to the clear language of Regulation 1601, T-Mobile is forbidden from revealing the name or phone number of any caller who blocked his or her phone number from Plaintiff, including whoever called her on February 18, 2011 at 9:46 a.m.

The history of Regulation 1601 further supports the Federal Communications Commission's ("FCC") intent that Regulation 1601 protect the identity of callers who choose to block their phone numbers. The FCC issued an opinion regarding calling number identification, wherein it "concluded that interstate callers should have a simple uniform way of being assured privacy on an interstate call." Rules and Policies Regarding Calling Number Identification Service -- Caller ID, CC Docket No. 91-281, Memorandum Opinion and Order on Reconsideration, Second Report and Order and Third Notice of Proposed Rulemaking, 10 F.C.C.R. 11700, 11706-07, 1995 WL 271760 (F.C.C.) (emphasis added). The FCC further "concluded that when interstate callers dial *67, their [phone number] should not be revealed to the called party." Id. at 11707. In a subsequent Report and Order, the FCC reiterated its decision that carriers "are required to recognize and honor calling parties' privacy concerns." (Ex. 10 at 3 (emphasis added).) Honoring a caller's request to block his or her phone number "reflects the Commission's balancing of the benefits of caller ID with the privacy issues raised by this and other [calling party number] services." (Id.) Additionally, the FCC noted that "Congress intended to protect and preserve subscribers' ...


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