good morning good morning your honour's are you holding up i'm on i'm doing all right you've been doing all the work it's a pleasure to be here your honor may please the court william call on behalf of the defendants and the district court did not address in its order monterey's argument as to the class definition moderate was not given the opportunity to find this class that was a choice made by the plaintiff the plaintiff put the class definition in the complaint and we know from of california or washington or rather a set forth and extra per record page sixty five the class of mission was all persons who while physically located in california or washington or reside made a received a phone call with what did they ask did they ask did they quote this language when they published in iraq the tories i couldn't find it and i've spent a lot of time looking through the papers right no no i don't believe they asked for iraq on i can get that citation for you on that i just gushing shall we say a disagreement about what was and was not going to mean done right and then i have the district court's order right yes and absolute and went to the district court order you provided the information that you had to conform to the definition of the class yes and to the district court order you to respond to this with has the language in it which is broader than the language of the other class that you get produced and that's what i'm asking you no no it was very clear what happened in district court there was a there were moderate has records that report that that it would no in fact it may be it may be that no one will know who those people are unless a class is certified and notices given and then people can respond with notice but this is plaintive you may have created an impossible situation for yourself for a coffee exception because how are you going to show me who all the occupants were because they're not the people who would be associated in the public record with those properties which means that that's  addresses in monterey's records ok i have this order after telephonic discovery conferences one on or before november eighth two thousand and sixteen defendant shall produce to play of a list of putative california and washington class members that includes putative class members complete names full telephone numbers and complete addresses it doesn't think that you think that's what it says so you are mute you agreed to do that after this telephonic conversation transcripts of both of the meetings with them in their transcript you have said to them look we don't we don't have these records of people who might have been in california actually i believe the counsel did i did not reply was not individuals who made phone calls period regardless of whether they're citizens of california and washington aware that they're not right so that's the bigger universe and then the list that you produced is individuals within that big universe who basically are shaded with a california washington address that's on the list that was produced so setting aside whether being associated with a mailing address is sufficient for purposes of demonstrating citizenship did they conduct discovery to try to seek information on what that hole is a big girl universe that would include the subset of individuals who have a mailing address associated with california and washington in other  words so there's a big universe everyone who ever had a call everyone who ever called monterey and then and then within that subset are individuals who made phone calls or so shaded with california washington such that we can be determined citizenship might my right i understanding the proposed class definition is the bigger universe that includes people who are citizens of california and washington however that's defined and people who may be passing through one that's in california washing the largest universe which is all the money would have in the tween is every call it's ever made with anyone no matter where they pass through washington california there's that large universe i don't recall that's even a bigger universe than under my definition but how about the universe that they've proposed as their class definition which is individuals who made a call while located in washington or california regardless of whether they're citizens or not was their discovery to figure out what that universe is because then you can clear this is not a i don't want to suggest any way to hide the ball process going on here the ball the ball which is who who is physically located in california or washington during a phone call like a cell phone call that that would be something the discovery could be conducted on against monterey i mean there's no there's no plane it has never articulated how monterey would have in its records a list of everybody who has an address and monterey's records are residing in washington or california or new york of florida or wherever how monterey would know where everybody was when they happen to make a phone call or receive a phone call in light of our cell phone world and so that universe our argument is that universe is if plaintiff that this is simply accepted ultimately what was provided by him and his then said well monterrey hasn't pointed out who else was physically located in monterrey hasn't pointed out who else might have been a member of the class and my broad a girl over there says these i believe is the name of the cases cited in our brief decided within the last year that it agreed with virtually ever the circuit i think every other circuits addressed the issue that you cannot change the class definition by amendment to avoid catheters action that while you can make certain changes that don't go to the definition of the class such as you can amend the complaint to clarify the nature of the relief you're seeking for example or to clarify perhaps how significant the defendant class a and in fact were hoisted upon their own petard if they didn't like what they got out of the discovery that you produced it was their burden just like it was their burden to show their qualification for the home state exemption for their local and local exemption was their burden to appeal any order and you discovery order or to a lodge in discovery or to get more in the hope that they could fill out the indicated when there was a discovery speed he said look you guys might need more time from the district court i don't know that i have time but there's going to be further discovery issues i don't know but have time to resolve it in the window that the district court provided you may need to go see the district judge and plaintiff took the position no we don't need more time all we need is these that are these addresses we don't need more time and so if there was more time needed if there was some of the use of the discovery or something a violation of a court order that should have been pressed and it was and we're here now with the record we have and we don't think that's sufficient i want to turn just for a moment if i can just to a couple other points as i'm running out of time the issue of class of u s citizenship this is particularly important this case because the percentages once you realize we weren't even dealing with the whole the whole class to begin with and now you look at a class that is expressly interstate and then you look at the analysis done by the plaintiff and their statistician  it isn't merely hypothetical or theoretical that u s citizenship could play a huge role here especially since we're dealing with western states that have a substantial portion of non u s citizens living there and i just want to point out that what the statistician did for the plaintiff was really disingenuous i don't mean intentionally so but it had its effect logically to be disingenuous because when we pointed out the issue that there was no evidence of what percentage of the class were even u s citizens the way that the statistician responded was well i will be ducked out an estimate of u s citizens from both the washington group and the california group and then all we compare the remainder that made no sense because once you're in the washington group it doesn't matter if you're a u s citizen because you're not a california citizen what do you need to do was simply deduct out the amount of california citizens who may be u s who may not be u s citizens he didn't do that finally i just want to point out on the i guess what originally perhaps i thought would be the biggest issue was how do you use these residential addresses and when you finally get to that point your honour's i just want to point out that every circuit except the six every circuit is set the sixth has the discovery which i did put into the record and i did want to provide some guidance to the court about that in particular to your honor's question about whether or not i asked for the you know list of the californians and you can find that sixty three to four seventy eight and i did propound requests for dog documents in iraq and tories requests for admissions notice depositions all using the definition of california adenike lee as as alleged in the complaint all persons residing and physically located so your it's your representation to us that there's no then no modification of that case law in the southern district of california that i could and then the complaint did verify it because as the court may know the reason why we got here is i'm pleading the language that provides in the pina colada code section of the california penal code six thirty accept which is language that applies to persons located in california residing and so that's why in the midst of this council putting aside for a moment whether you can amend the definition of the class i gather that you agree that under cafe your client bears the burden to meet the two thirds requirement right corrective action ok so under the circumstances  you have to show with whatever definition you come up with i gather you agree that's also your word you define a class act and it wasn't corrected by a court so this is your definition if you fail to do that  for any reason other than skullduggery on the part of the defendant that's your problem right correct but i would note in this case as as your honor what is judge when was pointing out the question is is the univers definition defended is focusing on where the parties are but what i'm asking for in the definition it's persons that were recorded the defendant knows who they recorded in request for dox i asked and give me every recording that you and you don't get cooperation and you go back for other or right yeah but your honor it's i they were ordered to produce the class list so if they gave me a list that didn't include included other persons that would have been fine they produce a list with a hundred in sixty thousand names in it after we responded we hired an investigator his boss who's declaration was not challenge and mr  and then and there supplemental reply to our brief they took for the first time the position that the classless that they gave us wasn't really the class list it doesn't include people that they don't know and look they recorded everybody so it was up to them to produce the evidence in response so and so they argued it so in response i argued to the district court that allowed me to have supplemental briefing we supplied a supplemental declaration found that  are twenty seven through thirty seven is mr lacker it's supplemental declaration taking into account all their arguments and the problem with their arguments is it's purely theoretical the claim that he argue that you can't back out recent residence in california if a hundred thirteen of a hundred thirty five hundred eighty five people in the sample or california residents that's only sixty one percent two thirds requirement now that comes from your expert as i understand it when i'm missing yes but it's not that you don't take a look you have to extrapolate from that so it's hard it's important if the court is going to focus on the on the experts declaration i'm an honest this is a two thirds requirement yes and and for the information i had for the sample it would show that extrapolated out would be over eighty two percent what do you mean by that extrapolated out so you're  not going to based on the sample we pulled the before in his first declaration found it or seven ninety through eight twenty nine he and mrs baf his declaration picked out a random sample of four hundred so then he read do seen his sample down and based on the four hundred person sample for the entire period of time because they argued between the two time periods that essentially that the class period ended on the date the complaint was filed that was their number one argument that our sample our original declaration was over inclusive because we included people whose first call that was recorded by defending occurred after the complaint so we reduced e it's civically says that i cannot contact any members of the class would defend it was arguing is and limited on his statements of the issues presented because we've simultaneously so many briefs in this case i had no idea what they were arguing but his only our issue is whether or not you can use residential addresses alone to prove residency that was their argument their argument was it's irrelevant which is not consistent with knights or good authority is not consistent with mondragon or any of the prior cases the hollings or case or or the later when i was driving with your counsel as you have a definition of the class nobody made you come up with that they gave you answers right you didn't contest what they gave you then experts two of them who made these determinations and they for whatever reason change the numbers as we didn't change the glass definition so i understand what what we did the point that was argued by defendant in their supplemental brief that i got to file a suit serve reply was their argument was we we added people we count people whose first call occurred after what they consider the class period and time thing was a timing so we did the calculations two ways we did it one based on the date of removal which was may six everybody in the lists that turned out to be people with what mailing address associated it so you know no but that's that's their argument that they only address associated i asked for a definite i asked for a bill that was an area that i was ecstatic in the production of discovery between what you asked for and thought you received and what i was produced but you were saying that you didn't find out that there was a gap there until the matter was well litigated and still after i found out for the first time they raise that argument and think to raise the issue and i'm not unsympathetic to that right you're getting what you thought was the putative class list and you hired an expert and you did the calculations based on that and then lo and behold come to find out that the  it's not really a putative class list because it's really limited by the information that they had in their possession which is people associated with california washington addresses so i would think one solution at that point would be to say to the district court well for whatever reason whether it's purposeful or sandbag and what have i'm not given the information i thought i had all this i come to find out in the reply i prefer that this was actually non responsive so can reopen discovery now go back to the class definition decide for yourself whether you want to reopen discovery and get the universe list if they have it or amend the class definition to basically me what they're now representing to be the position was it's a red herring to say that there could be some other persons located they know who they call they have the recordings themselves this is a case that they if i if i was allowed to do the discovery because the magistrate i asked to be able to contact the persons on the class list because their argument was you can't look at residential addresses it's irrelevant not that it doesn't go to weight of where their domicile that is is completely irrelevant in this case because i know who the people are i could have called and got declarations from everybody but defended didn't want that if it in want me talking to the people so if allowed and this court if if we're going to expand beyond dragging on the type of discovery allowed because they clearly put in all the discovery because defendant stonewalled and said i'm not giving you anything and it took me two independent discovery conferences just to get the order that i got counsel how long a time passed from the date that you initially promulgated your initial raga tori's until the end of his feet before he went to litigate i think within a week's time i per the judge handed down an order after looking at the papers and so we didn't know what it would come out soon as it was handed down i would say within five days i propounded very very quick growing very fast because and then what we got was blanket objections which are on the record and nothing but so then i had to have calls and the reason why on and you were and we put in both transcripts with but i needed a role here because if at the expert expiration of the sixty days the judges set a time line and i'm briefing these matters aren't in my opinion we're not supposed to be in the factual swamp that the tenth circuit was talking about where this should be and that's why i'm advocating that won't drag on the the area that they wanted to establish but they didn't reach because the facts weren't there and that under the under the catheter exemption standards to use that as evidence here there is an unknowable speculative number of people this should have been in california our problem or at least my and after it's all been on the record they say responding party will not produce documents or information in response to the group quest as proponent propound it nevertheless responding party will produce a report from which a ascertain information regarding the number of california and washington accounts serviced by defendants as well as the dates of the first and last telephone calls made to such accounts right so they told you first sentance they're not going to give you the information that you've asked for well i don't i think the point that they're talking about people located is the speculative red herring it's there is not there aren't those people but they know it's the people in the list they produce it's my expert look at the argument that they made that people could be in the area any and you know address it in discounted it and then just for that i need to do you think if you examined their records you could with just me hiring investigator to get the information and directly how long and we got voter registration event i would have media i mean you just have to do it as quickly as you can but i could have i could have hired a phone at some point as my colleagues read you were told you were going to get what you thought you were getting and that point at that point apparently you went forward with what you had and at least by some reckoning you don't have is right and to i didn't over time you got some really critical critical thing of life shaking earth shaking kind of thing you're told is what you need to and your wonderful br supplement that response to be the more specific and that's on page fourteen voted on page fourteen of the a pelleas of brinkley's brief in this case secondly it's unfair to the court the lower court suggests that it refused to allow the  plaintiff to make contact the class members and the reason that's unfair is because the court inquired what do you plan to do with this list do you plan to contact them because monterey had concerns about confidentiality of their party and the plants response to the court was no we don't need to contact them and the court said wall that case i don't think we have a problem you'll give it a list and you won't contact them so it's very unfair to suggest a lower court prevented well that's just the district court thought you were giving them a list of the class that they defined i don't volunteered to our shock that was volunteered by the plaintiff the final point i want to make is that the sixty one percent that judge smith referred to is exactly what their own their own experts said that's all he came up with was sixty one percent everything else was  everything else was speculation and that sixty one percent did not account for not us citizenship and did not account for this larger class definition thank you ours thank you very much we appreciate