LEGAL125267912.2 

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GRANT BIRCHMEIER, STEPHEN 

PARKES, SUSAN VIGUS, and REGINA 

STONE, on behalf of themselves and a Class 

of others similarly situated, 

Plaintiffs, 

v. 

CARIBBEAN CRUISE LINE, INC., 

ECONOMIC STRATEGY GROUP, 

ECONOMIC STRATEGY GROUP, INC., 

ECONOMIC STRATEGY GROUP, LLC, 

THE BERKLEY GROUP, INC., and 

VACATION OWNERSHIP MARKETING 

TOURS, INC., 

Defendants. 

Case No. 1:12-cv-04069 

Related to: Case No. 1:13-cv-00903 

Case No. 1:13-cv-00908 

Honorable Matthew F. Kennelly 

RESPONSE TO PLAINTIFF’S MOTION FOR ORDER COMPELLING 

T-MOBILE US, INC. TO PRODUCE CALIFORNIA SUBSCRIBER INFORMATION 

NOW COMES T-Mobile US, Inc. (“T-Mobile”) by its attorneys, Debra R. Bernard and 

Perkins Coie LLP and hereby submits this Response to Plaintiff’s Motion for Order Compelling 

T-Mobile US, Inc. to Produce California Subscriber Information (“Plaintiffs’ Motion” or “Pl. 

Mot.”) and states as follows: 

I. INTRODUCTION 

T-Mobile is a disinterested non-party in connection with this Telephone Consumer 

Protection Act (“TCPA”) class action. Plaintiffs have subpoened subscriber records from TMobile for approximately 42,000 T-Mobile customers including 4,605 California Subscribers. 

Pursuant to the meet and confer process and in accordance with this Court’s directive, T-Mobile 

has agreed to develop a mechanism to access the names and addresses of the subscribers on the 

list provided by Plaintiffs. However, as will be set forth herein, under the California Public 

Utilities Code and the California Code of Civil Procedure, which reflect California’s right to 

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privacy embodied in its state Constitution, T-Mobile is legally prohibited from providing such 

information for the California Subscribers absent consent from those Subscribers. Moreover, 

there is no basis to conclude that Fed. R. Civ. P. 45 preempts this important California public 

policy. Thus, Plaintiffs’ motion compelling disclosure of the identifying information of 

California Subscribers without consent, should be denied. 

II. ARGUMENT 

A. California Law Requires Consent of California Subscribers to Produce their 

Personal Information 

California’s Constitutional right to privacy applies to telecommunications subscriber 

information. This well-established right to privacy in telecommunications subscriber 

information has been codified in California Public Utilities Code (“P.U.C.”) § 2891(a)(4), which 

states in full: 

(a) No telephone or telegraph corporation shall make available to 

any other person or corporation, without first obtaining the 

residential subscriber’s consent, in writing, any of the following 

information: 

(4) Demographic information about individual residential 

subscribers, or aggregate information from which individual 

identities and characteristics have not been removed. 

(emphasis added). 

California law thus requires written consent before T-Mobile can disclose a subscriber’s 

records. Plaintiffs assert that § 2891 only applies to residential rather than mobile phone records. 

(Pl. Mot. at 5). Plaintiff is incorrect. As a wireless telecommunications provider, T-Mobile is 

inarguably a “telephone or telegraph corporation” under P.U.C. § 2891. See GTE Mobilnet of 

Cal. Ltd Partnership v. City and County of San Francisco, 440 F. Supp. 2d 1097, 1102-03 (N.D. 

Cal. 2006) (wireless carriers are “telephone corporations” within the meaning of the California 

Public Utilities Code); Re Consumer Protection Rules Applicable to All Telecommunications 

Utilities, Decision 01-07-030, Rulemaking Proceeding, 00-02-004, 212 P.U.R. 4th 282, 2001 

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WL 1131856 (Cal. P.U.C., July 12, 2001) (“Wireless telephone service providers providing 

telephone service in California are ‘telephone corporations’ as defined by the Public Utilities 

Code . . .”). Westcom Long Distance, Inc. v. Pacific Bell, 2006 WL 2076342, at *12 (Cal. P.U.C. 

2006) (“Although Pub. Util. Code § 2891 appears to apply only to residential telephone 

customers, the idea that someone can obtain and disclose the calling patterns of business 

telephone customers without their consent is reprehensible as well.”). Indeed, courts have 

applied § 2891(a) to prohibit disclosure of T-Mobile’s wireless subscriber records without 

consent. See, e.g., In re Farsheedi, No. C 09–3888 JF, 2009 WL 4572745 (N.D. Cal. Dec. 4, 

2009) (acknowledging Order from bankruptcy court denying motion to compel T-Mobile to 

disclose subscriber records under Cal. Pub. Util. Code § 2891(a)); Tataryn v. Barnett, Case No. 

08 FL 00527, Superior Court of California, County of Sacramento, June 9, 2014 Ruling at p. 4 

(“On the balance, review of the statutes supports the view that PUC section 2891 applies to 

mobile subscribers”).1 (A copy of this Ruling is attached hereto as Ex. A). Thus, under the 

overwhelming weight of authority, § 2891 applies to the T-Mobile California Subscribers. 

Moreover, in furtherance of California’s concerns regarding consumer privacy, California 

Civil Procedure Code explicitly states that: “[a] subpoena duces tecum for personal records 

maintained by a telephone corporation which is a public utility, as defined in Section 216 of the 

Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed 

by the consumer whose records are requested, as required by Section 2891 of the Public Utilities 

Code.” See Cal. Civ. Pro. Code § 1985.3(f); see also Cal. Pub. Util. Code § 216(a) (defining 

 

1

 Plaintiffs also cite the decision in Kamalu v. Walmart Stores, Inc., No. 1:13-cv-00627-SAB, 2013 WL 4403903, at 

*6 (E.D. Cal. Aug. 15, 2013) in support of her position that no consent is required here. However, in the Kamalu

case, the records being sought were those of the individual Plaintiff herself and were specifically relevant to her 

allegations. Additionally, the Kamalu case has been criticized by at least one California State Court and is 

inconsistent with other courts’ ruling on this issue (See attached ruling in Tataryn v. Barnett). Significantly, in the 

Bad Boys case referred to in the Tataryn ruling, the court found that “California law explicitly requires that a 

subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility as 

defined in Section 216 of the Public Utilities Code shall not be valid or effective unless it includes a consent to 

release signed by the consumer whose records are requested as required by Section 2891 of the Public Utilities 

Code.” (See transcript attached as Exhibit B at pp. 25-26). In fact, in the Bad Boys case, the court found that TMobile’s opposition to the motion to compel was “well taken” and T-Mobile was entitled to reasonable expenses 

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“public utility” as “every . . . telephone corporation . . .where the service is performed for, or the 

commodity is delivered to, the public or any portion thereof.”). 

Consequently, if T-Mobile were to produce the records requested in Plaintiff’s subpoena 

without the required consent, it could be in violation of the law and could expose itto civil 

liability under California law. In re National Security Agency Telecommunications Records 

Litigation, 483 F.Supp.2d 934, 945 (N.D. Cal. 2007) (“absent a statutory exemption, mere 

disclosure is enough” for a violation of Cal. Pub. Util. Code § 2891); see also, Cal. Pub. Util. 

Code § 2891(e) (“[e]very violation [of section 2891] is grounds for a civil suit by the aggrieved 

residential subscriber against the telephone or telegraph corporation and its employees 

responsible for the violation”). Accordingly, T-Mobile’s unwillingness to produce the requested 

records is not only well-founded, but is required under California law. 

Plaintiffs further argue that §2891 does not apply because the information is being 

requested pursuant to a federal court subpoena which Plaintiffs claim falls within the scope of 

§2894(a) of the Public Utilities Code. (Pl. Mot. at 4). §2894(a) provides, in pertinent part: 

(a) Notwithstanding subdivision (e) of Section 2891, the disclosure 

of any information by an interexchange telephone corporation, a 

local exchange telephone corporation, or a provider of commercial 

mobile radio service...in good faith compliance with the terms of 

a state or federal court warrant or order or administrative 

subpoena issued at the request of a law enforcement official or 

other federal, state, or local government agency for law 

enforcement purposes, is a complete defense against any civil 

action brought under this chapter or any other law... 

(emphasis added). 

However, contrary to Plaintiffs’ suggestion, §2894(a) only applies to subpoenas issued 

for law enforcement purposes. Indeed, any other interpretation of this Section, i.e. one that 

encompasses civil subpoenas, would render Cal. Civ. Code §1985.3(f) completely superfluous 

and unnecessary. It is axiomatic that “courts should strive to give meaning to every word and 

should reject any interpretation that renders any portion of the statute superfluous.” Stapleton v. 

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Advocate Health Care Network, No. 14 C 01873, 2014 WL 7525481, at *5 (N.D. Ill. Dec. 31, 

2014) (quoting United States v. Natour, 700 F.3d 962, 973 (7th Cir. 2012). See also, Jaworski v. 

Master Hand Contractors, No. 09 C 07255, 2014 WL 4627794, at *4 (N.D. Ill. Sept. 16, 2014) 

(“[I]n pari materia, statutes should be construed so as to give effect to all statutory provisions in 

order that no portions of the statutes are rendered inoperative, superfluous, or ineffective.”) 

(citation omitted). Thus, the only interpretation that gives meaning to §1985.3(f) is that it applies 

to lawfully issued civil subpoenas such as the one to T-Mobile in this case. 

Plaintiffs’ reliance on the decision in McArdle v. AT&T Mobility LLC, No. C 09-1117 

CW (MEJ), 2010 WL 1532334 (N.D. Cal. April 16, 2010) is unavailing. In McArdle, while the 

court recognized that “Section 2891 provides that no telephone corporation shall make available 

certain information without first obtaining the customer’s written consent,” the court then seized 

on the word “order” in § 2894 (a) claiming that “§ 2894 of the Utilities code proves an exception 

to this rule for court orders.” Id. at *6. However, it is apparent that the word “order”—like 

“warrant” or “administrative subpoena”—is limited to orders stemming from requests by 

government officials “for law enforcement purposes.” As noted above, Plaintiffs’ approach also 

would nullify §1985.3(f) barring subpoenas for personal records maintained by telephone 

corporations unless they include a written consent to release. 

Further, in McArdle, the court also claimed that the Defendant’s reading of section 2891 

was “not in line with the California Supreme Court’s decision in Pioneer”.

2

 Id. However, 

Pioneer did not involve the interpretation of §2891 of the Public Utilities Code or §1985.3(f) of 

the California Civil Code, but rather California’s right to privacy provision in the California 

Constitution.3

 Thus, the decision in McArdle is not helpful to Plaintiffs and does not require 

production of the requested information absent consent. 

 

2 Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360 (2007). 3

 Plaintiffs erroneously contend that “the California Supreme Court has found that adherence to Section 2891—i.e. 

by requiring consent be obtained—“could have potentially adverse effects in cases brought to redress a variety of 

social ills, including consumer rights litigation” citing McArdle and Pioneer. (Pl. Mot. at 5). However, Pioneer, the 

California Supreme Court decision, did not involve Section 2891. Significantly, in Pioneer, the Court held that 

“section 1985.3 permits discovery of consumer’s records held by record holders (e.g. banks, lending institutions, 

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B. Rule 45 Does Not Preempt the California Public Utilities Code 

Plaintiffs contend that §1985.3(f) does not apply to subpoenas issued by federal courts 

citing a one page decision in RBS Sec. Inc. v. Plaza Home Mortgage, Inc., No. 12CV2132-JM 

MDD, 2012 WL 3957894, at *1 (S.D. Cal. Sept. 10. 2012) which acknowledged that there is a 

difference of opinion in the federal district courts in California on this issue citing Corser v. 

County of Merced, 2006 WL 253622 (E.D. Cal. Aug. 31, 2006) and Robinson v. Kia Motors 

America, Inc., 2011 WL 2433369 (E.D. Cal. June 13, 2011). Regardless, §2891 and §2894 of 

the Public Utilities Code clearly encompass subpoenas issued in federal courts and prohibit the 

production of the T-Mobile California Subscribers information absent consent. 

Demonstrating the importance of the privacy concerns that are the foundation of these 

provisions, in Robinson, the court observed that “California takes the privacy rights of its citizens 

seriously...” and that “[t]he threshold issue is the extent to which this formal statement of 

California should be respected by federal courts. Id. at *1-2. Because of the privacy concerns 

implicated by these statutes, in Robinson, the court also noted they could be construed as 

“substantive policy statutes,” which would then be subject to a preemption analysis. Id. 

Indeed, in this case, the preemption argument is inescapable. Plaintiffs are asking the 

Court to ignore the California statutes and California’s well entrenched right to privacy under the 

California Constitution. This argument is tantamount to asserting that Rule 45, providing for 

federal subpoenas, preempts the California laws governing the disclosure of the type of 

information sought in the subpoena. There is no basis for this conclusion. The statutes at issue, 

§1985.3 and §§2891, 2894 reflect the policy in California of safeguarding its citizen’s privacy 

and are therefore, substantive. Accordingly, there is no applicable federal law that would 

 utilities) if the consumer is given prior notice and an opportunity to object or seek a protective order.” 

Pioneer, 40 Cal.4th at 374. (emphasis added). Indeed, in Pioneer, the Court held that the trial court’s order was 

sufficient where it provided for notice to the complaining customers about the lawsuit, about Plaintiff’s request for 

identifying information in order to contact them, and their right to object to release of that information—their failure 

to response would be treated as consent to the release. Id. at 365-66. Moreover, in Pioneer, the Plaintiff was 

seeking the identities of consumers who had already complained about the allegedly defective products. Here, 

Plaintiffs are not advocating that the consumers (who unlike in Pioneer, have not complained about the allegedly 

unwanted calls) be given prior notice of the disclosure of their information to Plaintiffs. 

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preempt the substantive privacy rights that California constitutionally guarantees its citizens. It is 

well settled that “[i]n a preemption analysis, Congress' intent governs but there is the assumption 

that Congress does not intend to interfere with a state's police power to improve the welfare of its 

citizens.” Curry v. Kraft Foods Global,Inc., No. 10 C 1288, 2012 WL 104627, at * (N.D. Ill. 

Jan. 12, 2012) (quoting Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1994–95, 173 L.Ed.2d 51 

(2009)). Further, in Mason v. SmithKline Beehcam Corp, 596 F.3d 387, 390, the Seventh Circuit 

described the three types of preemption: 

Preemption comes in three forms. First, and the easiest to apply, is 

express preemption which occurs when Congress clearly declares 

its intention to preempt state law. Second, we have implied 

preemption which occurs when the “structure and purpose” of 

federal law shows Congress's intent to preempt state law. Finally, 

we come to conflict preemption which occurs when there is an 

actual conflict between state and federal law such that it is 

impossible for a person to obey both. See English v. Gen. Elec. 

Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). 

The only type of preemption that might apply here would be “conflict preemption.” To 

allow Plaintiffs the requested discovery without regard to the procedures set out in §1985.3 and 

§§2891, 2894 would make it impossible for T-Mobile to comply with both the state and federal 

laws. Preemption analysis begins with a presumption against preemption. Planned Parenthood 

of Indiana, Inc. v. Commissioner of Indiana State Dept. Health, 699 F.3d 962, 984 (7th Cir. 

2012). Given this presumption, it is clear that Plaintiffs have not set forth any basis to rebut that 

presumption and to conclude that Rule 45 should preempt California’s privacy policies embodied 

in these statutes. 

C. Alternatively, if the Statutes at Issue Involve a Privilege, the Court Must 

Engage in an Analysis of Whether a Privacy Interest is Infringed 

In Robinson, at issue were subpoenas issued to Pacific Bell for the individual Plaintiffs’ 

telephone records—Robinson did not concern the issue in the instant case—a subpoena which 

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requests subscriber information for 4600 California Subscribers. Thus, the decision in Robinson 

is of limited utility here. Further, since the preemption issue was not raised by the parties, the 

court considered the statute to encompass a “mere privilege” not to produce certain information.4

 

The court held that federal privilege law applied but that a federal court can consider state 

privilege law. Id. at *2-3. 

Since this case involves a federal question, federal privilege law may control—according 

to the Robinson court, “state privilege law which is consistent with its federal equivalent may 

significantly inform in applying privilege law to discovery disputes.” Robinson, 2011 WL 

243369, at *2. The Robinson court (and Plaintiffs herein) relied on factors identified by the court 

in Pagano v. Orvoville Hospital, 145 F.R.D. 683, 688-89 (E.D. Cal. 1993) on whether a privacy 

interest was unduly infringed. These criteria are as follows: 

(1) the probable encroachment of the individual’s privacy right if 

the contested action is allowed to proceed, and the magnitude of 

that encroachment; (2) whether the encroachment of the privacy 

right would impact an area that has traditionally been off limits for 

most regulation; (3) whether the desired information is available 

from other sources with less encroachment of the privacy right; (4) 

the extent to which the exercise of the individual’s privacy rights 

impinge on the rights of others; and (5) whether the interests of 

society at large encourage a need for the proposed encroachment. 

 In reviewing the first two factors, the encroachment of the individual’s right to privacy, 

the underlying action in this case is for allegedly unwanted telephone calls made without the 

subscribers’ consent. The California Public Utilities Code provides that certain information, 

including demographic and identifying information, maintained by T-Mobile cannot be disclosed 

without the subscriber’s consent. Yet Plaintiffs are requesting that this court override that 

privacy interest to provide names and addresses of subscribers, without their consent, so they can 

be advised that they may be entitled to relief for a different unsolicited contact. This anomalous 

 

4

 In fact, the Robinson court utilized a privilege analysis rather than a preemption analysis noting that because the 

Plaintiff did not argue a preemption theory “the court is unwilling to embark on such a unique course without a party 

rowing for such a result.” Id. at 3. 

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result favors Defendants’ position as the probable encroachment by such a process is precisely 

the type of encroachment implicated by the Public Utilities Code provisions (and the invasions of 

privacy addressed by the TCPA). Further, the third factor, whether the information is available 

with less encroachment on the privacy rights, for reasons set forth in Defendant’s Response to 

Plaintiffs’ First Motion also weighs against production. Moreover, given that consent can be 

obtained from the subscribers to allow for production of their information, the information is 

available with less encroachment—Plaintiffs are simply trying to avoid the extra step required to 

comply with the California law. With regard to the fourth and fifth factors, while Plaintiffs 

assert that they are “attempting to provide the best notice practicable to the members of the 

Classes they represent,”(Pl. Mot. at 8) and thus, serving society’s interests—again, Plaintiffs can 

obtain the information, they simply must follow the procedures required by the California 

statutes governing the right to privacy of the California subscribers.5 It is not enough to suggest 

as Plaintiffs do, that the expense “should not be unnecessarily incurred” when the privacy rights 

guaranteed California citizens are at issue.6 Id. 

III. CONCLUSION 

For the reasons set forth herein, Plaintiffs’ Motion to Compel should be denied. 

 Respectfully, submitted, 

 T-MOBILE US, INC.

By: /s/ Debra R. Bernard 

One of its Attorneys 

 

5

 To the extent that the cases cited by Plaintiffs for the proposition that the disclosure of names and addresses is 

permissible in the pre-certification class context, do not involve the California statutes at issue, they are inapposite. 

See e.g., Sanbrook v. Office Depot, No. C07-5938,-RMW (PVT), 2009 WL 840019 (N.D. Cal. March 30, 2009); 

Pioneer, supra. 6

 Plaintiff also suggests that Plaintiff should not bear the expense of providing notice to, or obtaining consent from, 

the California subscribers. (Pl. Mot. at 8 n.6). However, it has long been established that “the plaintiff must pay for 

the cost of notice [to a class] as part of the ordinary burden of financing his own suit.” Eisen v. Carlisle & 

Jacquelin, 417 U.S. 156, 178-79 (1974). 

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Debra R. Bernard, ARDC No. 6191217

Perkins Coie LLP

131 South Dearborn Street, Suite 1700 

Chicago, IL 60603-5559 

312.324.8400 

Dated: ___March 12, 2015___________ 

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CERTIFICATE OF SERVICE

I, Debra R. Bernard, certify that on March 12, 2015, I caused the foregoing T-Mobile’s 

Response to Plaintiff’s Motion for Order Compelling T-Mobile US, Inc. to Produce 

California Subscriber Information to be filed and served via the Court’s CM/ECF system 

upon the following parties: 

Scott R. Rauscher 

scott@loevy.com

Jonathan I. Loevy 

jon@loevy.com

Michael I. Kanovitz 

mike@loevy.com

LOEVY & LOEVY 

312 N. May Street, Suite 100 

Chicago, Illinois 60607 

T: 312-243-5900 

F: 312-243-5902 

Richard W. Epstein (Florida Bar No. 229091 

Richard.Epstein@gmlaw.com

Rebecca F. Bratter (Florida Bar No. 685100) 

Rebecca.Bratter@gmlaw.com

Jeffrey A. Backman (Florida Bar No. 662501) 

Jeffrey.Backman@gmlaw.com

GREENSPOON MARDER, P.A. 

200 E. Broward Blvd., Suite 1500 

Fort Lauderdale, FL 33301 

T: 954-491-1120 

F: 954-343-6958 

Admitted Pro Hac Vice 

Jay Edelson 

jedelson@edelson.com

Rafey S. Balabanian 

rbalabanian@edelson.com

Eve-Lynn J. Rapp 

erapp@edelson.com

EDELSON PC 

350 North LaSalle Street, Suite 1300 

Chicago, Illinois 60654 

T: 312-589-6370 

F: 312-589-6378 

Timothy Hudson 

TABET DIVITO & ROTHSTEIN LLC 

209 South LaSalle Street, 7th Floor 

Chicago, Illinois 60604 

T: 312-762-9476 

F: 312-762-9451 

thudson@tdrlawfirm.com

M. Peebles Harrison (Pro Hac Vice) 

Rose, Harrison & Gilreath, P.C. 

700 Blue Jay Street, Suite 1 

Post Office Box 405 

Kill Devil Hills, North Carolina 27948 

T: 252-480-1414 

F: 252-480-1765 

Peebles@outerbankslaw.com

Brian P. O’Meara 

Forde Law Offices LLP 

111 West Washington Street, Suite 1100 

Chicago, Illinois 60602 

T: 312-465-4780 

F: 312-641-1288 

bomeara@fordellp.com

/s/ Debra R. Bernard 

One of the attorneys for T-Mobile US Inc. 

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