In Meredith v. United Collection Bureau, Inc., No. 16 CV 1102 (N.D. Ohio Apr. 13, 2017), a putative class action, plaintiff sought to represent a class of individuals who had received wrong-number calls to their cell phones from defendant, a debt collector, in violation of the Telephone Consumer Protection Act. The court had previously denied plaintiff’s motion to compel production of class information for wrong-number calls from defendant’s database of over 278,000 accounts after defendant asserted that manual review of the database would be unduly burdensome. Later, defendant’s chief technology officer conceded during his deposition that a computer program could be written to query defendant’s database to identify the class information plaintiff sought. Plaintiff asked defendant to write such a computer program and produce the relevant portions of its database, or alternatively to forego production of the class information until after certification but to stipulate to numerosity under Federal Rule of Civil Procedure 23. When defendant declined all of plaintiff’s proposals, plaintiff filed a motion to compel, and defendant filed a competing motion for protective order. Defendant asserted that it was not obligated to write the software program plaintiff proposed because, under Rule 34, production of ESI is limited to the manner in which the ESI is “kept in the usual order of business.” Furthermore, defendant contended that writing and testing such a software program would take a few days and harm its ability to conduct business during business hours.
The court ordered defendant to produce the relevant information, reasoning that defendant was not being compelled “to create completely new documents” but only “to query an existing dynamic database for relevant information.” The court left the parties the option of having defendant write the program at plaintiff’s expense, or having plaintiff’s expert write the program with access to representatives of defendant with knowledge of the database for information to understand the database and for possible deposition. Finally, the court ordered that the program would be run on defendant’s database during non-business hours to minimize the burden to defendant.