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This is How It Is in TCPAland: Class Counsel Moves to Strike Defendant’s Consent Defense for Seeking One Week Extension to Redact PII from Data Production

Lest anyone think TCPAland isn’t fraught with peril for unwary defendants, let me tell you a quick tale.

Citibank is facing TCPA class litigation in the Northern District of California–yes the same Citibank that so recently defeated certification of a TCPA case in Illinois– and was recently compelled to produce “terabytes” of consumer data to opposing counsel and their experts.

That’s bad enough–and a decent story too–but that’s not even the story I’m telling right now.

After having an opportunity to review the previously-produced data putative class counsel next demanded additional consent and account records for hundreds of members of the putative class. Defendant–probably wary of facing another motion to compel if it did not comply–agreed to produce the records in 23 days.

On the 23rd day Defendant was not yet ready to make its production and–presumably after seeking and being denied consent by Class Counsel–filed a letter with the court requesting seven additional days to make the production. The reason? Personal identifying information in the production needed to be redacted and the Defendant was turning to an outside vendor for help.

Citibank ended up hiring a team of fifty reviewers to redact sensitive information–social security numbers and the like–on an expedited basis. Through the hard work of the vendor–and a $60,000.00 bill–Citibank was, indeed, able to make the production within seven days of its letter to the Court.

In the meantime, however, Class Counsel swiftly filed a motion to strike Defendant’s affirmative defense of consent across the class and to exclude all evidence related to consent. Even after the data production was made Class Counsel did not take the motion off calendar–forcing the Court to rule on whether or not the seven day delay justified throwing out the Defendant’s most critical defense.

The Court issued its ruling last Wednesday in the decision of Revtich v. Citibank, N.A., Case No. 17-06907, 2018 WL 6573094 (N.D. Cal. Dec. 12, 2018.) Mercifully, the Court denied the motion finding that the one week delay had not prejudiced the Plaintiff and pointing out that the Defendant had operated in good faith and moved in a diligent manner to make the production.

Then again, the Court did caution Defendant not to try this again. The last line of the order reads: “Defendant shall ensure its compliance with all deadlines going forward.”

That’s pretty ominous.

As ever before, TCPA class actions are not for the faint of heart or the green of horn. be careful out there TCPAland.

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