1

 1 TRANSCRIBED FROM DIGITAL RECORDING 

 2 IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

 3 EASTERN DIVISION 

 4 NICHOLAS MARTIN, on behalf of ) Docket No. 12 C 215 

himself and others similarly ) 

 5 situated, ) 

 ) 

 6 Plaintiff, ) 

 ) 

 7 v. ) Chicago, Illinois 

 ) March 13, 2012 

 8 DUN & BRADSTREET, INC., and ) 10:27 o'clock a.m. 

CONVERGYS CUSTOMER MANAGEMENT ) 

 9 GROUP, INC., ) 

 ) 

10 Defendants. ) 

11 TRANSCRIPT OF PROCEEDINGS - STATUS 

BEFORE THE HONORABLE MORTON DENLOW 

12 

APPEARANCES: 

13 

For the Plaintiff: BURKE LAW OFFICES, LLC., by 

14 MR. ALEXANDER HOLMES BURKE 

155 North Michigan Avenue 

15 Suite 9020 

Chicago, Illinois 60601 

16 

For Defendant Dun &: ICE MILLER LLP, by 

17 Bradstreet: MR. ISAAC J. COLUNGA 

2300 Cabot Drive 

18 Suite 455 

Lisle, Illinois 60532 

19 

20 ALEXANDRA ROTH, CSR, RPR 

Official Court Reporter 

21 219 South Dearborn Street 

Room 1224 

22 Chicago, Illinois 60604 

(312) 408-5038 

23 

24 NOTE: Please notify of correct speaker identific NOTE: Please notify of correct speaker identification. 

FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES

25 PORTIONS INAUDIBLE. PORTIONS INAUDIBLE. PORTIONS INAUDIBLE. 

Case: 1:12-cv-00215 Document #: 45 Filed: 10/09/12 Page 1 of 10 PageID #:299
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 1 APPEARANCES: (Continued) 

 2 For Defendant Convergys: DLA PIPER US LLP IL, by 

MR. ALBERT EDWARD HARTMANN 

 3 203 North LaSalle Street 

20th Floor 

 4 Chicago, Illinois 60601 

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 1 (Proceedings had in open court:)

 2 THE CLERK: 12 C 215, Martin versus Dun & Bradstreet.

 3 MR. BURKE: Good morning, Judge. Alexander Burke,

 4 B-u-r-k-e, for the plaintiff.

 5 MR. COLUNGA: Good morning, your Honor. Isaac

 6 Colunga, C-o-l-u-n-g-a, on behalf of the defendant Dun &

 7 Bradstreet.

 8 MR. HARTMANN: Good morning, your Honor. Albert

 9 Hartmann, H-a-r-t-m-a-n-n, on behalf of the defendant

10 Convergys.

11 THE COURT: Okay. I see Mr. Burke has filed a motion

12 to certify the class. So what do you need to do before you are

13 ready to proceed with that motion?

14 MR. BURKE: I would need some class discovery. I've

15 already issued some very limited discovery requests. I think I

16 have passed eight interrogatories and something like 12

17 document requests, some -- and some requests for admission.

18 I would hope to maybe file a memorandum in support of

19 that motion in, say, 60 days.

20 THE COURT: Okay. And what would you need to do in

21 opposition to the motion, in the way of discovery? I mean, I'm

22 going to focus on that aspect of it first. Either we're going

23 to have a class action or we're not going to have a class

24 action.

25 MR. COLUNGA: Your Honor, I think there -- there is

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 1 two issues. And I'll let counsel take over with respect to one

 2 of them. But one of them, what we see is, in a case like this,

 3 there is an awful lot of electronically stored information

 4 discovery that pertains to that. And we're in the process

 5 right now of obtaining as much as we can. We still have to

 6 review it. We have to organize it and then produce it.

 7 I do feel that 60 days might be cutting it a little

 8 short. However, there is -- there is an issue with respect to

 9 bifurcation. And I think counsel can speak to that as well

10 that might -- might help expedite things.

11 MR. HARTMANN: Yes, your Honor. In the status report,

12 we were thinking -- the defendants were thinking along the

13 lines that you were -- we focused on the class issues.

14 Initially do discovery on the elements that Mr. Burke will need

15 to certify a class, unless the defendants concede that, say,

16 for example, numerosity. Focus that, get the class

17 certification resolved. And then if there is any merits based

18 discovery left, do that at the end. But also conceding that

19 after discussing with Mr. Burke in a Rule 26(f) conference, if

20 the defendants are going to have to serve defenses such as

21 consent, we would have to provide discovery on that in --

22 THE COURT: All right.

23 MR. HARTMANN: -- 60 days --

24 THE COURT: The consent issue really requires you to

25 look at each particular customer? Is that what it involves?

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 1 MR. HARTMANN: Yes, your Honor.

 2 MR. COLUNGA: That's right, your Honor. We're still

 3 identifying, you know, the numbers, the precise numbers, and

 4 the customers themselves. We also still need to identify the

 5 communication that they allegedly received. Or I'm sorry, the

 6 call.

 7 MR. BURKE: Judge, this is not like some other auto-

 8 dialer cases, like the ones against debt collection agencies.

 9 I mean, the plaintiff has no relationship with Dun & Bradstreet

10 or Convergys. They obtained this phone number from some

11 source. I don't know where they got it. But it seems hard to

12 imagine that there is consent here.

13 THE COURT: What -- what was the nature of the call

14 itself?

15 MR. BURKE: It was a call that was made in order to

16 build Dun & Bradstreet's database, as far as we can tell.

17 THE COURT: To build --

18 MR. BURKE: Dun & Bradstreet is like a company that

19 provides sort of credit reports for businesses.

20 THE COURT: Right.

21 MR. BURKE: And so they were trying to learn about my

22 client's business when they made this phone call. Convergys is

23 a company that Dun & Bradstreet hired to build its database.

24 During the phone call, the operator told my client

25 that they used an autodialer. And really the autodialer issue

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 1 is -- as I see it, that's the only merits issue here. I don't

 2 think that it's going to be a messy issue.

 3 Typically in this kind of case the only thing I need

 4 to do in order to prove that they used an autodialer under the

 5 TCPA is ask a few questions in a deposition. Sometimes I even

 6 get --

 7 THE COURT: Right.

 8 MR. BURKE: -- interrogatory.

 9 THE COURT: You can do it through an interrogatory

10 request to admit. I mean --

11 MR. BURKE: Although they usually deny the request for

12 admission even though I tried to carefully craft them. So, you

13 know, and I understand --

14 THE COURT: Are you getting -- are you getting better

15 at crafting them?

16 MR. BURKE: I'm trying, Judge. I think that I've

17 gotten better, especially in my interrogatories. They're very

18 pointed. And, you know, for a very large case, you know, I'm

19 not sure I'm going to need any more interrogatories than the

20 nine or so that I've issued.

21 THE COURT: Mr. Burke is getting good at this stuff.

22 He's got his own law firm now. I mean, I knew him when he was

23 just at Edelman & Combs, just young associate getting --

24 getting his feet wet here.

25 MR. BURKE: It was good experience, Judge. You know,

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 1 I'm having a good time with this autodialer stuff.

 2 You know, the plaintiff opposes bifurcation. You

 3 know, the -- the liability issue that defendants are referring

 4 to, I think, is just this whether they were using an auto-

 5 dialer. I think that that -- that issue meshes with the class

 6 issues because I'm going to have to prove that everyone used --

 7 THE COURT: And --

 8 MR. BURKE: -- the same dialer.

 9 THE COURT: -- also meshes with the issue whether

10 you're going to settle the thing or not settle the thing. So

11 as long as a discovery is somewhat limited in scope, as Mr.

12 Burke has described, as it relates to merits, I'm not going to

13 bifurcate the discovery. You can go ahead and do both class

14 and merits. And, you know, I want to keep -- keep the class

15 discovery moving forward.

16 So let me see you in about 60 days.

17 MR. COLUNGA: If -- perhaps, your Honor, if we can set

18 a status in 60 days. But I do feel that we may need more time

19 to that too --

20 THE COURT: Well, I'll find out. I mean, you know,

21 I'm looking for you to be working closely together to move it

22 forward. But let me see you on a status in 60 days.

23 I mean, you know, what -- what I think sometimes is

24 helpful is to just take examples of -- I mean, yes, I mean,

25 while you may want the entire discovery, just pulling out

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 1 representative situations and seeing whether they -- they work

 2 for you is also helpful. So you may have a period of time that

 3 you asked for, two years back.

 4 MR. BURKE: Right, it's two years.

 5 THE COURT: So, I mean, if you can give him on a

 6 rolling basis a couple of months and let him analyze it, he's

 7 going to tell you whether he's got a case or doesn't have a

 8 case, if they're representative. So you take one month from

 9 the first year, one month from the second year, and something

10 along those lines.

11 MR. BURKE: I -- I think that's something we can work

12 out. I mean, you know, the way I've defined the class is, it

13 does not include anyone who gave their phone number to either

14 defendant. And giving your phone number is consent. And I'm

15 not aware of any other action or inaction that can constitute

16 consent.

17 So from my perspective, there should be no one in the

18 class who consented.

19 MR. COLUNGA: Beyond consent, there may be individuals

20 in the class as it's currently defined, I believe, who -- where

21 the phone call did not go to a cell phone. And we still need

22 to confirm that. Whether --

23 THE COURT: That's why I'm saying, you know, spend

24 some time just, you know, breaking out a month from each year

25 quickly. Get it to Mr. Burke. Let him analyze it. See where

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 1 you're going with the thing. And then he'll realize whether or

 2 not you're going to have defenses or whether he's got a slam

 3 dunk.

 4 MR. COLUNGA: That's right, your Honor. And I should

 5 say, your Honor, we are working well together. This is -- this

 6 might be a little quibble before you. But we -- we can work

 7 this out.

 8 MR. BURKE: You know, one other thing, Judge, that may

 9 be worth mentioning is that I recall that one of the

10 affirmative defenses had to do with releases for some of the

11 class members as to other cases. And I'm not aware of any

12 other cases that this -- that might relate to this case. And I

13 think I issued discovery about this.

14 Am I thinking of the wrong case?

15 MR. HARTMANN: No, that -- that was actually my -- it

16 was more preemptive. Just it -- I'm not aware of any other

17 cases specifically. But to the extent there is something out

18 there, I wanted to --

19 THE COURT: So why don't we see you in 60 days. And I

20 want progress made both on, you know, the class certification

21 issue and -- and the merits issue. Let's see where we stand.

22 THE CLERK: May 15, 10:00 a.m.

23 MR. BURKE: Great. Thank you.

24 THE COURT: Thank you. Thank you all.

25 MR. COLUNGA: Your Honor, I apologize, we also have a

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 1 status report that we had issued, the plaintiff had filed, with

 2 respect to the several -- the dates.

 3 MR. BURKE: I suggested October 15 as the discovery

 4 cutoff. And maybe we should just talk about that in May.

 5 THE COURT: Yeah, let's talk about it in May. See, I

 6 mean, you'll have a better handle on to see whether you have

 7 the difficulties you anticipate or not.

 8 MR. BURKE: Okay.

 9 THE COURT: Okay?

10 MR. COLUNGA: Thank you, your Honor.

11 MR. HARTMANN: Thank you.

12 THE COURT: Thank you.

13 (Which were all the proceedings had at the hearing of the

14 within cause on the day and date hereof.)

15 CERTIFICATE 

16 I HEREBY CERTIFY that the foregoing is a true, correct

17 and complete transcript of the proceedings had at the hearing

18 of the aforementioned cause on the day and date hereof.

19 

20 /s/Alexandra Roth 8/30/2012 

__________________________________ _________________ 

21 Official Court Reporter Date 

 U.S. District Court 

22 Northern District of Illinois 

 Eastern Division 

23 

24

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