WILSON TURNER KOSMO LLP

ATTORNEYS AT LAW

Case No. 17-CV-00184-WHA 

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(619) 236-9669 

February 20, 2018 

VIA ECF 

The Honorable William Alsup 

United States District Court for the Northern District of California 

San Francisco Courthouse, Courtroom 12, 19th Floor 

450 Golden Gate Avenue, San Francisco, CA 94102 

Re: John Etter v. Allstate Insurance Company, et al., Case No. 17-CV-00184-WHA 

Dear Judge Alsup: 

Pursuant to the Court’s Supplemental Order to Order Setting Initial Case Management 

Conference in Civil Cases Before Judge William Alsup, Allstate Insurance Company; Allstate 

Indemnity Company; Allstate Property And Casualty Insurance Company; Allstate North Brook 

Indemnity Company; and Allstate Insurance Company Of California (collectively, “Allstate”) 

hereby submits this formal request for discovery relief. Allstate seeks an order compelling 

Plaintiff John C. Etter (“Plaintiff”) to promptly produce documents responsive to Allstate’s Third 

Set of Requests for Production Nos. 53-55 (“RFPs”), in particular any recordings of telephone 

calls to Plaintiff’s business. These recordings are directly relevant to a key issue in this case, 

whether Plaintiff provided prior express permission to send the 2016 fax. The request for 

recordings is also proportional to the needs of the case as the recordings are easily accessible and 

shareable through an online website to which Plaintiff has exclusive access, as explained in more 

detail below. See Fed. R. Civ. P. 26(b)(1). 

Allstate’s RFPs are attached hereto as Exhibit 1, and Plaintiff’s Responses and 

Objections to the RFPs are attached hereto as Exhibit 2. In addition, pertinent portions from the 

transcripts of the depositions of Plaintiff and his wife, Shelly Etter, are attached hereto as 

Exhibits 3 and 4, respectively. 

On February 8, 2018, Allstate sent a letter via e-mail to Plaintiff’s Counsel explaining its 

position and requesting Plaintiff supplement his production by producing the requested 

recordings. (Ex. 5.) On February 14, 2018, Allstate’s attorneys, Meryl Maneker and Kirsten 

Gallacher, met and conferred by telephone with Plaintiff’s Counsel, Ryan Kelly. Mr. Kelly 

indicated that certain recordings may include privileged attorney-client communications; 

however counsel for Allstate clarified that Allstate is not seeking production of any privileged 

communications. On February 16, 2018, Plaintiff’s Counsel sent a letter in response indicating 

that Plaintiff stands on its objections. As discovery in this case closes in less than two weeks, 

Allstate is filing the instant letter seeking discovery relief as set forth below.

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At issue in this dispute is the production of Plaintiff’s recordings of incoming telephone 

calls. Plaintiff testified during his deposition that it was his business practice and procedure to 

record incoming telephone calls to his business telephone line as these recordings are used, for 

example, “if [they] need to go back and see what somebody said” or if a dispute arises regarding 

an appointment. (Ex. 3, Plaintiff Depo., at 64:17-22; 66:4-5). After learning of the existence of 

these recordings, Allstate served its Third Set of RFPs on October 12, 2017, requesting 

production of recordings of telephone calls and conversations that Plaintiff made in connection 

with his business telephone line. (See Ex. 1.) 

In response, Plaintiff lodged blanket objections based on relevance and proportionality. 

(Ex. 2.) Specifically, Plaintiff objected that “the time and expense incurred in gathering the 

information is grossly disproportionate to the probative value, if any of the requested 

information.” (See id.) 

However, since Plaintiff served his objections, it has become readily apparent that 

minimal time and expense are required to access the recordings. Indeed, Mr. Kelly confirmed 

during the telephonic meet and confer on February 14 that the recordings are in his possession. 

Moreover, Shelly Etter testified during her deposition on January 23, 2018 that the recordings are 

made and maintained by a third party vendor, Callcap. She also testified that recordings dating 

back to December 22, 2015 can be retrieved from the Callcap website. (Ex. 4, Shelly Etter 

Depo. at 104.) According to Mrs. Etter, upon entering a username and password, the Callcap 

website provides access to the call recordings associated with the Etters’ business line, and the 

user can listen to these recordings by simply pushing a button. (Id. at 68–69.) In fact, Mrs. Etter 

accessed the recordings on the Callcap website during her deposition, demonstrating that there is 

minimal time and expense to Plaintiff in gathering the requested information. (Id. at 104:3-5.) 1 

Mrs. Etter also confirmed that the call recordings can be downloaded from the website, 

and the recordings can be shared via e-mail. (Id. at 70.) Mrs. Etter further testified that the 

recordings can be searched by telephone number. (Id. at 104:15-18.) Though Mrs. Etter was not 

aware of the specific format of the downloads, the Callcap website indicates that recorded calls 

are stored as MP3 files and “are stored in the cloud, so they’re accessible from any internetenabled computer, tablet, or smartphone.” (Ex. 7.) The website also makes clear that the 

recordings are “shareable, so you can quickly send calls to team members.” (Id.) It is clear from 

Mrs. Etter’s testimony that there will be minimal, if any, time or expense to Plaintiff to provide 

Allstate access to these recordings. Accordingly, Plaintiff’s objections based on purported time 

and expense in gathering this information have no merit. 

Moreover, the requested recordings of telephone calls received by Plaintiff’s business are 

directly relevant and highly probative to a key issue in this case—whether Plaintiff provided 

prior express permission to send the fax at issue. Plaintiff’s theory appears to be that the 2016 

 

1

 Allstate has also subpoenaed records directly from Callcap. The third-party subpoena to 

Callcap does not relieve Plaintiff of his discovery obligations, though Plaintiff’s production of 

the requested documents may impact the scope and need for third-party discovery. 

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Case No. 17-CV-00184-WHA 

fax was unsolicited because neither he, nor any of his employees, provided permission to 

Defendant Louis Odiase (“Odiase”) to send the fax. Specifically, Plaintiff testified during 

deposition that it is not possible—“there is no way”—that one of his employees could have given 

Odiase permission to send a fax because his employees “never” give out phone numbers and 

have “never” given permission for faxes to be sent. (Ex. 3, Plaintiff Depo. at 43–47, emphasis 

added). Plaintiff also acknowledged that these recordings are used, for example, “if [they] need 

to go back and see what somebody said” or if a dispute arises regarding an appointment. (Ex. 3, 

Plaintiff Depo., at 64:17-22; 66:4-5). The requested discovery is important to this litigation for 

the same reasons. The recordings are direct evidence that may contradict Plaintiff’s theory that 

his employees “never” give out phone or fax numbers, and thus could not have provided 

permission to Odiase for the 2016 fax. 

Finally, to the extent Plaintiff objects based on attorney-client privilege, this is not a 

proper basis to withhold production of the recordings altogether. Mrs. Etter confirmed during 

her deposition that the recordings can be searched by telephone number. (Ex. 4, Shelly Etter 

Depo. at 104:8–9). As the recordings are in Plaintiff’s Counsel’s possession, he can search the 

recordings by telephone number and withhold any privileged recordings, identified on a proper 

privilege log. 

In short, the requested recordings are relevant to a key issue in this case, prior express 

permission. The requested information is also proportional to the needs of the case, considering 

the highly probative value of the information, the minimal time and expense, if any, to Plaintiff 

to produce, and Plaintiff’s exclusive access to this information. In addition, the amount in 

controversy also supports the production of this information, as Plaintiff represents a certified 

class of alleged fax recipients in which he has claimed the potential damages are in excess of $26 

million. 

For these reasons, Allstate respectfully requests that the Court enter an order requiring 

Plaintiff to either produce the call recordings in his possession, custody, or control, or provide 

Allstate prompt access to the recordings maintained on the Callcap.com website. 

Sincerely, 

/s/ Meryl C. Maneker 

Meryl C. Maneker 

Counsel for Allstate Defendants 

Allstate Insurance Company 

Allstate Indemnity Company, 

Allstate Property And Casualty Insurance Company 

Allstate North Brook Indemnity Company 

Allstate Insurance Company Of California 

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