MOTION TO COMPELL DISCOVERY RESPONSE

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Motion to compell Discovery Response

Plaintiff XXXXX, files this Motion to Compel Discovery Response, pursuant to Justice Court Rules of Civil Procedure (“JCRCP”) 127 (“JCRCP 127”), Arizona Rules of Civil Procedure (“ARCP”) 37(a)(3)(B)(iii) and (iv) (“ARCP 37”). In support thereof, Plaintiff states as follows:

Introduction & Relevant Procedural Background

Defendants have failed to participate in discovery in any meaningful way, and the few disclosures they have made lacked good faith. Defendants have ignored repeated attempts from Plaintiff to address the deficiencies. Plaintiff has shown good faith by limited the scope for several of the requests. Notably, Plaintiff has made the second requests more than fair since much of the requested information was requested in Reets v. Tax Advocate Group, LLC, Case No. 1:21-cv-06235, before the Honorable Manish S. Shah in the United States District Court for the Northern District of Illinois Eastern Division as far back as August 12, 2022. Defendants should therefore make the requested information readily available. It follows; Defendant’s actions have made it clear they do not intend to participate in discovery without being compelled to do so.

On January 26, 2023, the Plaintiff served his First Set of Discovery on the defendant seeking information regarding his claim. A copy of the responses, which were responded to and supplemented following a meet and confer, are attached as Exhibit 1, and Plaintiffs supplemented requests are attached as Exhibit 2.

Plaintiff’s Meet and Confer Efforts Pursuant to JCRCP 127

“Rule 37(a)(2)(C) requires a party in a discovery dispute to first make good-faith efforts to resolve the dispute before seeking a motion to compel.” See Saint-George v. Mayo Clinic Ariz., No. 1. CA-CV 13-0335, at *9 (Ariz. Ct. App. Oct. 16, 2014).

Tax Advocate Group first responded to the Plaintiff’s discovery requests on March 10, 2023. The parties then conducted one meet and confer which resulted in a supplemental set of responses being provided on March 23, 2023. Plaintiff has sent multiple requests to Defendant’s counsel to come to some agreement, all of which have gone unanswered (Exhibit 3). On April 17, 2023, Plaintiff advised of Defendants of his intent to file a motion to compel if the matter was not resolved. The matter was not resolved, and no documents were produced.

Argument

Tax Advocate Group Should be Compelled to Admit the Truth of the Specific Facts Requested.

“If a defendant has been tardy or noncompliant in responding to discovery or disclosure, the plaintiff can move to compel discovery or disclosure, seek sanctions, and seek additional time to respond to the motion.” See Chicharello ex rel. Chicharello v. State, No. 1 CA-CV13-0523, at *5 (Ariz. Ct. App. Nov. 25, 2014).

For all requests, JCRCP 126(a) grants Plaintiff a great deal of latitude for his requests. It states “A request for admissions may concern any matter permitted under Rule 122(a). A request for admissions is not necessarily objectionable because it asks for an opinion, or because it presents a contention that relates to a fact, or that involves the application of law to facts…” Plaintiff’s Requests include the following requests for admissions:

PLAINTIFF’S REQUEST FOR ADMISSION NO. 4:

On August 19, 2022, you used automated or pre-recorded voices to telemarket your goods or services to potential customers.

OBJECTION: The phrase “automated or pre-recorded voices” is vague and ambiguous, and not defined in Plaintiff’s requests. Defendants further object on the grounds that this admission is overly broad as it seeks information with regard to “potential customers,” anywhere, without any apparent connection to claims asserted by Plaintiff.

RESPONSE: Defendants can neither admit nor deny request no. 4 for the reasons stated in its objection.

PLAINTIFF’S SECOND REQUEST: On August 19, 2022, you used artificial or pre-recorded voices to telemarket your goods or services to plaintiff.

Plaintiff first asserts that the words “automated”, “pre-recorded, and “voice” are unambiguous. Plaintiff is not required to define every term, especially when the plain definition of the word is so unambiguous.

Next, the admission is not overly broad, either defendants did or did not use “pre-recorded or automated voices” to telemarket their goods or services on August 19, 2022.

Finally, Plaintiff has alleged “23. On or about August 19, 2022, at 12:58 pm Plaintiff received a phone call from 267-810-6007 his Cell Number which contained a prerecorded message” Complaint ¶ 23. The connection to Plaintiff’s claims could not be more apparent.

REQUEST FOR ADMISSION NO. 7:

On or about August 19, 2022, you did not have a written policy for maintaining a do-not-call list.

RESPONSE: TAG admits that it cannot produce a written policy, from the time period in question, at this time. However, TAG is still in the process of investigating Plaintiff’s claims and reserves the right to supplement or revise this answer if responsive documents are located.

PLAINTIFF’S SECOND REQUEST: On or about August 19, 2022, you did not maintain a written policy for maintaining a do-not-call list.

Plaintiff asserts that Defendants proffered response is not relevant to this request for admission. Plaintiff did not request an admission that Defendants could not produce a written policy for maintaining a written do-not-call policy. Plaintiff requested an admission that a written policy was not maintained. Defendants either did or did not maintain a written do-not-call policy and are required to admit or deny accordingly.

REQUEST FOR ADMISSION NO. 10:

You did not have express prior consent from Plaintiff, the owner of 602-295-1875, prior to making marketing calls to his number.

RESPONSE: TAG can neither admit or deny request no. 10. TAG received Plaintiff’s contact information from a third party vendor, Skyline Marketing (“Skyline”). TAG is attempting to obtain evidence from Skyline and, at present, does not know whether Skyline has evidence of consent.

PLAINTIFF’S SECOND REQUEST: You did not possess prior express consent from Plaintiff to call 602-295-1875 and telemarket prior to making marketing calls to his number.

Plaintiff asserts that Defendants proffered response is not relevant to this request for admission. Plaintiff did not request an admission that Defendants obtained his contact information from a third party, Plaintiff requested an admission that Defendants did not have express consent from Plaintiff prior to making marketing calls to his number. Defendants either did or did not have consent prior to making the marketing calls and are required to admit or deny accordingly.

Tax Advocate Group Should Be Compelled to answer in writing and under oath Plaintiff’s interrogatories.

JCRCP 124 provides that interrogatories “must be answered in writing and under oath by the party to whom the interrogatories are sent.” In the instant case, Defendant made the following objection:

DEFENDANT’S GENERAL OBJECTION: Interrogatories no. 1 and no. 4 are compound questions rather than discrete questions. Including subparts, Plaintiff’s Requests for Interrogatories exceed the presumptive limit of permitted interrogatories.

According to JCRCP 124(a), “[a]n interrogatory may inquire about any matter permitted under Rule 122(a).” JCRCP 122(a) further states:

Parties may discover any non-privileged information that is relevant to the facts or issues involved in a lawsuit, whether the information relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party … A party may not object to a request for discovery on the grounds that the information sought will be not be admissible at trial if the requested information appears reasonably calculated to lead to the discovery of admissible evidence.

It is Plaintiff’s assertion that neither rule stipulates the length or limits the request to non multi-faceted interrogatories.

Interrogatory Number 1 states “Identify all persons involved in making outbound calls promoting your goods and services.” It then goes on to specify what identifying information should be included about each individual. These specifications are not unreasonable and are clearly relevant to determine the identity of individuals involved in the matter and to determine if they may have in their possession additional evidence for Plaintiff’s allegations.

Interrogatory Number 4 states “Identify any person who contributed to the creation or review of scripting or talking points used by anyone working for your company,” and “Identify any person who has provided training compliance with any rules set forth in the TCPA and it’s implementing regulations 47 C.F.R. 64.1200.” Plaintiff alleges violations of 47 U.S.C. § 227 and its implementing regulations 47 C.F.R. 64.1200(d)(2). This statute, amongst other things requires, “personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the do-not-call list.” Scripting and training of agents and those who were responsible for said training is directly related Plaintiff’s allegations.

INTERROGATORY NO 1: Identify all persons involved in making outbound calls promoting your goods and services. Identify any and all alternate names or pseudonyms any such individuals may have used. This includes, but is not limited to, any calls made to acquire new customers. Identify starting date and end date of employment. Identify and describe the work of each person, and describe the nature of the relationship for any such person. Identify the contact information for each person. Identify any person (wither employed by you or not) whom you have disciplined, reprimanded, or take any similar action against for engaging in, facilitating, or allowing allegedly unlawful or unauthorized outbound calls to occur. In your answer, please identify all persons involved in any investigation, describe the reasons for your disciplinary action or reprimand, and describe the action taken against the person.

OBJECTION: Defendants object to interrogatory no. 1 on the grounds that it is a multi-faceted inquiry, consisting of at least seven components, rather than a single interrogatory. As such, interrogatory no. 1 by itself exceeds the presumptive limit of five interrogatories set forth in Rule 124. Defendants further object on the basis that interrogatory no. 1 seeks detailed information regarding TAG’s operations nationwide, without any limitation of scope or time or bearing on Plaintiff’s claims. Interrogatory no. 1 is, therefore, overbroad and unreasonably burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible information.

According to JCRCP 124(a), “[a]n interrogatory may inquire about any matter permitted under Rule 122(a).” Said law further states

It makes no stipulation as to the length or limits the request to non-multi-faceted interrogatories. Interrogatory no 1, requests specific information relating to those individuals who work for Defendant, the nature and quality of their work. Amongst other possibilities, this information would evidence who called plaintiff, allow testimony to be obtained from those individuals, whether or not those individuals had an history of violating the TCPA, and if Defendants discouraged that behavior in any way. It follows; the information is in the Interrogatory neither overbroad, nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

Additionally, confidential and proprietary information is not privileged and not exempt from discovery.

INTERROGATORY NO. 2: If you contend that Plaintiff provided consent to receive solicitation telephone calls, state all facts in support of that contention and identify date(s) on which and the means by which you contend consent was obtained, and state all facts of any affirmative defense you have raised.

RESPONSE: Defendants are still in the process of investigating Plaintiff’s claims. TAG received Plaintiff’s contact information from Skyline Marketing (“Skyline”). TAG hired Skyline to market its services online. TAG is attempting to obtain any evidence of Plaintiff’s consent from Skyline.

Plaintiff asserts that Defendant’s response does not answer the interrogatory. Plaintiff’s interrogatory asks if “[Defendants] contend that Plaintiff provided consent to receive solicitation telephone calls”. Defendants either do or do not make this contention, and if so “state all facts in support of that contention and identify date(s) on which and the means by which you contend consent was obtained, and state all facts of any affirmative defense you have raised.”

INTERROGATORY NO. 3: Identify by make, model, structure, and location the system(s), platforms(s), and/or equipment used by you, or any vendor.

OBJECTION: In addition to their general objection, Defendants object to interrogatory no. 3 because it seeks confidential and proprietary information regarding TAG’s operations nationwide, and/or information in the exclusive possession of third parties, without any limitation of scope or time or bearing on Plaintiff’s claims. Interrogatory no. 3 is, therefore, overbroad and unreasonably burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible information[.]

According to JCRCP 124(a), “[a]n interrogatory may inquire about any matter permitted under Rule 122(a).” Said law further states “Parties may discover any non-privileged information that is relevant to the facts or issues involved in a lawsuit, whether the information relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party”. Besides, Confidential and proprietary information is not privileged and not exempt from discovery. Plaintiff is also willing to agree to a nondisclosure agreement if needed. Requesting basic information about the system used to place phone calls to Plaintiff is fundamental to allegations that calls were made with an automated dialing system. Therefore, the requested information is not overbroad, not unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

INTERROGATORY NO. 4:

Identify any person who contributed to the creation or review of scripting or talking points used by anyone working for your company. This includes, but is not limited to, officers, employees, vendors, or sub vendors. Identify any person who has provided training compliance with any rules set forth in the TCPA and it’s implementing regulations 47 C.F.R.64.1200.

OBJECTION:

In addition to their general objection, Defendants object to interrogatory no. 4 on the grounds that it seeks information regarding TAG’s operations nationwide, without any limitation of scope or time or bearing on Plaintiff’s claims. Interrogatory no. 4 is, therefore, overbroad and unreasonably burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible information.

Plaintiff asserts that the requested information will evidence the extent to which the defendant did or did not train their employees, the extent to which defendants were directly involved with that training, if they willfully ignored the obligation to train their employees, and could lead to other individuals who could testify to the same. Therefore, the requested information is neither overbroad nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

INTERROGATORY NO. 5:

Identify any and all partnerships, joint ventures, limited liability companies, corporations, other entities, and organizations to which “you” have any ownership interest, are a manager, officer, registered or statutory agent, otherwise have an interest.

OBJECTION:

In addition to their general objection, Defendants object to interrogatory no. 5 on the grounds that it seeks information that is irrelevant and entirely unrelated to Plaintiff’s claims.

It is Plaintiff’s belief that Defendant may have operated in joint venture with other entities, interrogatory no 5 could lead to evidence of that joint venture or other commingling of resources. Therefore, the requested information is neither overbroad nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

Tax Advocate Group Should Be Compelled to produce the requested documents

“For discovery purposes, the information sought need only be “reasonably calculated to lead to the discovery of admissible evidence.” See Cornet Stores v. Superior Court, 108 Ariz. 84, 86, 492 P.2d 1191, 1193-94 (1972); 8 C. Wright A. Miller, Federal Practice and Procedure § 2008, at 41 (1970).” See also, Brown v. Superior Court, 137 Ariz. 327, 332 (Ariz. 1983).

REQUEST NO 1:

Training and Supervision:

Please provide any and all documents used in the training and supervision of employees and vendors conducting any telemarketing activity on your behalf. This includes, but is not limited to the following:

All documents relating to any failure by an employee or a vendor to abide by your policies relating to the sending of outbound calls.
Please produce all documents relating to complaints or do-not-call requests concerning outbound calls, including, but not limited to, lists or databases containing complaints about them, an information identifying complaints. This request includes any complaints to you by mail, email, live call, IVR, SMS, web form, social media, FCC, FTC, CFPB, state attorney general, BBB or any other source.

OBJECTION:

In addition to their general objection, Defendants object on the grounds that request no. 1 seeks general information regarding TAG’s operations nationwide, without any limitation of scope or time or bearing on Plaintiff’s claims. In addition, subparts “a” and “b” seek information that is wholly unrelated to Plaintiff’s claim or any possible defense that might be asserted. Interrogatory no. 1 is, therefore, overbroad and unreasonably burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible information.

According to JCRP 124(a), “[p]arties may discover any non-privileged information that is relevant to the facts or issues involved in a lawsuit, whether the information relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party … A party may not object to a request for discovery on the grounds that the information sought will be not be admissible at trial if the requested information appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added).

Plaintiff contends that the requested information will evidence the extent to which the defendant did or did not monitor their employees and agents compliance with the TCPA and if they willfully ignored the obligation to ensure their employees and agents complied with the TCPA. Therefore, the request is neither overbroad nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

REQUEST NO. 2:

Vendors:

In regards to vendors, please provide the following:

all contracts or documents representing agreements with any vendors that contacted the Plaintiff, and/or that provided you with the Plaintiff’s phone number;
all communications with any vendor that physically dialed calls to the Plaintiff regarding outbound calls, and/or any vendor that provided you with the Plaintiff’s phone number regarding data acquisition or purported consent related to the data it sells;
all internal communications with any vendor that physically dialed calls to the Plaintiff regarding outbound calls, and/or any vendor that provided you with the Plaintiff’s phone number regarding data acquisition or purported consent related to the data it sells;
all communications with any third party concerning this litigation.

OBJECTION:

In addition to their general objection, Defendants object on the grounds that request no. 2 seeks general information regarding TAG’s operations nationwide, without any limitation of scope or time or bearing on Plaintiff’s claims. Defendants further object to request no. 2(d) on the grounds that it seeks information that is subject to the attorney-client privilege and/or the work product doctrine and, therefore, not discoverable. Defendants further object to request no. 2(d) on the grounds that “any third party” is overbroad and non-specific, and that searching for responsive information is not reasonably likely to lead to the discovery of relevant or admissible evidence.

RESPONSE: TAG received Plaintiff’s contact information from Skyline. TAG hired Skyline to market its services online. TAG is attempting to locate any documents involving or related to its arrangement with Skyline as to Plaintiff’s call specifically and—subject to a protective order—will produce any such documents once it locates them.

Plaintiff has since updated this request to reflect the Defendant’s concerns. Besides, it is settled that the Justice Court Rules of Civil Procedure allow a party to request from another party up to five (5) documents or items, or up to five (5) categories of documents or items.

REQUEST FOR DISCOVERY NO. 3:

Calls:

Please produce all documents containing any of the following information for each outbound call to acquire new customers sent by you or your vendors between the dates of January 1, 2022 and December 31, 2022:

The date and time
The caller ID
Any recorded message or dialing system used;
The result
Identifying information for the recipient; and
Any other information stored by the call detail records.
Any recordings or transcripts of all calls made by employees or vendors mad to plaintiff at any time.

OBJECTION:

In addition to their general objection, Defendants object on the grounds that request no. 3 seeks detailed information regarding TAG’s operations nationwide, over a one year period of time, without any bearing on or relationship to Plaintiff’s claims. In addition, information relating to Plaintiff’s clients/customers, or prospective customers, is proprietary and confidential, and protected from disclosure pursuant to federal privacy laws. Request no. 3 is,

therefore, overbroad and unreasonably burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible information.

Plaintiff asserts that the requested information leads to individuals who may be involved with allegations or have information pertaining to allegations. It is limited in scope. Therefore, the request is neither overbroad nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

REQUEST FOR DISCOVERY NO. 4:

Consent:

Please produce all documents related to Plaintiff, including, but not limited to all documents evidencing your relationship with Plaintiff or calls to Plaintiff. To the extent Defendant asserts that Defendant obtained consent or permission to contact Plaintiff based on a visit to a website(s) and the specific page(s) on those website(s) that you claim constitute consent or permission. Include all documents that identify the website host(s) for any website identified and the dates each hosts was active for each respective website. This includes, but is not limited to:

all access logs and error logs during the day you assert Plaintiff visited the website;
documents sufficient to identify and provide the schema and/or fields maintained in the database in which data posted through each website identified is stored or recorded;
documents concerning backups to the databases identified. Including any documents sufficient to identify where backups reside, the standard for the backup routines (e.g. full backups, incremental, differential), schedules (e.g backups taken daily, weekly, monthly), and retention;
for each website, all documents sufficient to identify any vendor or third party used for visitor traffic reporting. This includes any companies performing search engine optimization or internet marketing consultants
All web logs for any website identified, including the following information for each such website: IP Address, Location, Date and Time stamps, User Agent (including but not limited to user browser and operating system), Request URL, Referring URL, Request Type (i.e. POST, GET), Response Code, and Status.

OBJECTION:

In addition to their general objection, request no. 4 is overbroad and requests documents that are not relevant to Plaintiff’s claims or applicable defenses.

RESPONSE:

Subject to their general objection, Defendants agree to produce documents in their possession that evidence any communications between Plaintiff and TAG that are relevant to Plaintiff’s claims or any defense Defendants intend to assert.

Plaintiff asserts that the requested documents pertain details of prior consent to Defendant’s telemarketing, or the lack thereof. Therefore, the request is neither overbroad nor unreasonably burdensome, and only seeks information relevant and reasonably calculated to lead to the discovery of admissible information.

Conclusion

In light of the foregoing, Plaintiff requests this Court issue the following Order(s) in the interest of justice:

Compel Defendant to Provide a Statement of Compliance with Respect to Plaintiff’s Discovery Requests;
Overrule Defendant’s improper objections, and compel Defendant to produce anything withheld on the bases thereof;
Compel Defendant to produces a privilege log to evaluate any of their privilege claims; and
Grant any other Order the Court deems deems just.

Dated: ___________

Jason Crews164 W. Laurel Ct

Gilbert, AZ 85233

602-295-1875

Jason.crews@gmail.com

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