Hoagland v. Axos Bank

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH HOAGLAND, individually Case No.: 20-cv-807-BAS-DEB and on behalf of all others similarly 12 situated, ORDER GRANTING UNOPPOSED 13 MOTION FOR ENTRY OF AGREED Plaintiff, AT&T PRODUCTION ORDER 14 v. [DKT. NO. 57] AND ENTERING 15 PRODUCTION ORDER AXOS BANK, 16 Defendant. 17 18 Before the Court is Plaintiff’s Unopposed Motion for Entry of Agreed AT&T 19 Production Order. Dkt. No. 57. Good cause appearing, the Court GRANTS the Motion and 20 enters the Stipulated Order to Compel Document Production as follows: 21 Plaintiff Hoagland and non-party AT&T Inc. (“AT&T”) stipulate as follows: 22 1. On July 26, 2021, Plaintiff served a subpoena on AT&T (the “Subpoena”). 23 Ancillary to the Subpoena, Plaintiff also provided AT&T with a list of 6,830 calls 24 (“Schedule A”), and asked AT&T to provide subscriber and user information for each 25 phone number on the date identified. 26 2. AT&T objected to the Subpoena on grounds that, among other things, it could 27 not produce information about subscribers located in California and Delaware without a 28 1 Court order, pursuant to state law, including Cal. Pub. 11 Util. Code § 2894 and 11 Del. C. 2 § 2423. 3 3. California law permits the production of subscriber information pursuant to a 4 court order. Specifically, Cal. Pub. Util. Code § 2894 provides: 5 Notwithstanding subdivision (e) of Section 2891, the disclosure of any 6 information by an interexchange telephone corporation, a local exchange 7 telephone corporation, or a provider of commercial mobile radio service, as defined in Section 2168, in good faith compliance with the terms of a state 8 or federal court warrant or order or administrative subpoena issued at 9 the request of a law enforcement official or other federal, state, or local governmental agency for law enforcement purposes, is a complete defense 10 against any civil action brought under this chapter or any other law, 11 including, but not limited to, Chapter 1.5 (commencing with Section 630) of Part 1 of Title 15 of the Penal Code, for the wrongful disclosure of that 12 information. 13 14 Cal. Pub. Util. Code § 2894(a). Federal courts have held that these provisions expressly 15 allow for production of subscriber information upon court order. See Kaur v. City of Lodi, 16 2016 WL 10679575, at *1 (E.D. Cal. Jan. 28, 2016) (“[I]t does not authorize [respondent] 17 to withhold documents in the face of a federal court order compelling their production.”); 18 McArdle v. AT&T Mobility LLC, 2010 WL 1532334, at *6 (N.D. Cal. Apr. 16, 2010) 19 (“[S]ection 2894 of the utilities code provides an exception to this rule for court orders.”). 20 4. Delaware law also expressly allows for disclosure of subscriber information 21 pursuant to a court order. The Delaware Code provides: 22 Except as provided in this subdivision, a provider of electronic 23 communications service or remote computing service may not disclose a 24 record or other information pertaining to a subscriber or customer of the service to any person other than investigative or law-enforcement officer. 25 26 11 Del. C. § 2423(c)(2). The same section of the Delaware law goes on to say: 27 Nothing in this chapter may be construed as creating a cause of action against 28 any provider of electronic communication service or remote computing 1 service, such service’s officers, employees, or agents or other specified persons for providing information, facilities or assistance in accordance with 2 the terms of a court order, warrant, subpoena or certification under this 3 chapter.

4 5 11 Del. C. § 2423(e). Thus, the Delaware law at issue does not preclude production 6 upon entry of a Court order. 7 5. AT&T further objected that it could not produce information about 8 subscribers in Pennsylvania without a Court order and notice to the subscribers under 18 9 Pa. C.S.A. § 5742. See also Lee v. Glob. Tel*Link Corp., 2017 WL 11272587, at *5-7 (C.D. 10 Cal. Dec. 6, 2017). 11 6. Through counsel, Plaintiff and AT&T reached the following agreement: 12 (a) that Plaintiff will seek an order from the Court requiring AT&T to produce the 13 information concerning subscribers located in California, Delaware, and all other states 14 except Pennsylvania in the format agreed to by their respective counsel, and (b) that AT&T 15 will not produce information regarding its Pennsylvania subscribers at this time. 16 7. AT&T will produce data responsive to the Subpoena within fourteen days 17 after a Court order permitting such is entered. 18 8. As such, Plaintiff and AT&T respectfully ask that the Court order as follows: 19 ORDER 20 Upon review of the foregoing stipulation, the Court finds that the stipulated relief 21 sought is due to be granted. Accordingly, it is ORDERED: 22 1. No later than fourteen calendar days after entry of this Order, AT&T shall 23 produce to Plaintiff’s counsel: 24 A data compilation in *.csv format agreed to by counsel for AT&T and Plaintiff, reflecting the first name, middle name, last name, email address, 25 and billing address for subscribers and users of AT&T phone services whose 26 phone number appears on Schedule A to the Subpoena (other than subscribers and users located in Pennsylvania), and the dates of service for 27 the account. 28 1 2. The Subpoenaed Information shall be maintained as “confidential 2 ||information” in accordance with the Protective Order entered in this action, Dkt. 36 (the 3 “Protective Order’). The information may be used only for purposes of the above- 4 ||captioned litigation and must be destroyed in accordance with the Protective Order. Upon 5 || written request from AT&T, Plaintiff shall confirm to AT&T and its counsel, in writing, 6 || when the destruction of all Subpoenaed Information is/was completed. 7 IT IS SO ORDERED. 8 Dated: November 16, 2021 — ; Daud Teron, 10 Honorable Daniel E. Butcher United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Dated: November 9, 2021 Stipulated and respectfully submitted, 2 AT&T INC. KENNETH HOAGLAND, 3 Individually and on Behalf of All By: s/ Emily Westridge Black Others Similarly Situated 4 Emily Westridge Black 5 HAYNES AND BOONE, LLP By: s/ Alexander H. Burke 600 Congress Ave., Suite 1300 Alexander H. Burke (pro hac vice) 6 Austin, TX 78701 BURKE LAW OFFICES, LLC 7 Telephone: (512) 867-8422 909 Davis St., Suite 500 emily.westridgeblack@haynesboone.com Evanston, IL 60201 8 Telephone: (312) 729-5288 9 Counsel for AT&T aburke@burkelawllc.com 10 Jeffrey S. Goldenberg (pro hac vice) 11 GOLDENBERG SCHNEIDER, L.P.A. 4445 Lake Forest Dr., Suite 490 12 Cincinnati, OH 45242 13 Telephone: (513) 345-8291 jgoldenberg@gs-legal.com 14 15 James C. Shah (SBN 260435) Chiharu G. Sekino (SBN 306589) 16 MILLER SHAH LLP 17 1230 Columbia St., Suite 1140 San Diego, CA 92101 18 Telephone: (619) 235-2416 19 jcshah@millershah.com cgsekino@millershah.com 20 21 Joseph M. Lyon (pro hac vice) THE LYON FIRM 22 2754 Erie Ave. 23 Cincinnati, OH 45208 Telephone: (513) 381-2333 24 jlyon@thelyonfirm.com 25 Counsel for Plaintiff 26 28 1 SIGNATURE CERTIFICATION 2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies and 3 Procedures Manual, I hereby certify that the content of this document is acceptable to 4 Emily Westridge Black, counsel for AT&T Inc., and that I have obtained Ms. Black’s 5 authorization to affix her electronic signature to this document. 6 s/ Alexander H. Burke 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28