Arizona, State of et al v. Michael D Lansky LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
State of Arizona, ex rel. Kristin K. Mayes,
Attorney General; et al.,
Plaintiffs,
v.
Michael D. Lansky, L.L.C., dba Avid Telecom;
et al.,
Defendants.
______________________________________
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CV 23-00233-TUC-CKJ (MAA)
ORDER
Pending before the court is the defendants’ brief raising discovery issues, which was filed
at the direction of the District Court (Doc. 126). Doc. 138. The defendants’ opening brief was
filed on August 27, 2025. Doc. 138. The plaintiffs filed a response on September 8, 2025.
Doc. 145. The defendants filed a reply on September 15, 2025. Doc. 155.
Background
“On May 23, 2023, Plaintiffs, [approximately 50 states represented by their state
Attorneys General], filed this action against Defendants Michael D. Lansky L.L.C., dba Avid
Telecom (Avid Telecom), M. Lansky, individually, and Stacey Reeves, individually, and as
Vice President of Operations and Sales of Avid Telecom.” Order Denying Motion to Dismiss,
Doc. 64, p. 1. “Plaintiffs allege Defendants violated the Telemarketing and Consumer Fraud
and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. § 6101 et seq.; the Telemarketing
Sales Rule (“TSR”), 16 C.F.R. § 310 et seq.; the Telephone Consumer Protection Act
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(“TCPA”), 47 U.S.C. § 227 et seq., and certain state laws that protect consumers against unfair
and deceptive trade practices, including unfair, deceptive, abusive, and illegal telemarketing
practices.” Doc. 64, p. 1.
“Plaintiffs’ case focuses on the barrage of unwanted robocalls sent to millions of
American consumers that are harassing, annoying, threatening, and malicious.” Doc. 64, p. 1.
“The Complaint alleges the Defendants are in the business of providing Voice over Internet
Protocol (VoIP) services, facilitating, or initiating robocalls, and/or helping others make
robocalls.” Doc. 64, p. 1 (citing Complaint, Doc. 1).
In their opening brief, the defendants assert as a preliminary matter that they should be
allowed to propound discovery requests on all plaintiffs, but they are prevented from doing so
because the court’s scheduling order restricts them to propounding requests on only the lead
State Plaintiffs. Doc. 138, p. 3, n. 2. The defendants, however, fail to direct the court to that
part of the scheduling order with which they take issue. They may be referring to paragraph E1
of the Case Management Scheduling Order that states
Generally, the limits on discovery by as set forth in Federal Rules 30, 31, and 33
shall apply: twenty-five (25) single-part question interrogatories, depositions of
parties, except party depositions are limited to Defendants, the lead Plaintiff
States of Arizona, Indiana, North Carolina, and Ohio, and any Plaintiff state
bringing state law actions against Defendants.
Doc. 102, p. 2. This paragraph, however, does not forbid the defendants from propounding
discovery requests on non-lead Plaintiff States. If the defendants seek information about
telephone calls made to a non-lead Plaintiff State, this paragraph does not prevent them from
asking that state directly for documents. Of course, if the defendants seek documents that a
non-lead Plaintiff State might have, but those documents might also be held by a lead Plaintiff
State, it might be prudent to check with the lead Plaintiffs and get the information from them
if they indicate that they have it.
The defendants assert that they have made Requests for Production of Documents, but
the plaintiffs’ responses to many of their requests are insufficient. They argue that the
plaintiffs’ objections such as “over broad” or “burdensome” are improper because they consist
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of generalized or “boilerplate” language and are not supported by particularized facts. Doc.
138, p. 5. They maintain that the plaintiffs’ objections as to relevance are improper because the
defendants are seeking information discoverable pursuant to Fed.R.Civ.P. 26(b)(1).
The plaintiffs, however, assert that even though they have raised certain objections, they
are not withholding any documents on those grounds. Doc. 138, pp. 5, 7. The defendants’
arguments, therefore, are moot at this time.
The defendants further argue that the plaintiffs “refused to produce documents” related
to their damage calculations. Doc. 138, p. 7. The plaintiffs, however, state that they have “no
responsive documents.” Id. The defendants’ objections are therefore moot. See Edge Sys. LLC
v. Ageless Serums LLC, 2021 WL 4497505, at *8 (C.D. Cal. Aug. 20, 2021) (“[I]t is axiomatic
that the court cannot order a party to produce documents that do not exist. A mere suspicion
that additional documents must exist is an insufficient basis to grant a motion to compel.”).
The defendants further assert that the plaintiffs are required to provide a computation of
each category of damages claimed along with supporting material in their initial disclosures
pursuant to Fed.R.Civ.P. 26(a)(1)(C). Doc. 138, p. 8. In their response brief, the plaintiffs
assert that damages will be determined at trial and they “have no obligation to undertake legal
research or organize factual evidence for Defendants to provide a calculation of the respective
potential statutory civil penalties that may be applicable for each count of Plaintiffs’
Complaint.” Doc. 145, p. 5. In the alternative, they assert that because initial disclosures were
due on September 6, 2024, the “Defendants’ timing is much too late.” Doc. 145, p. 6. The
court does not agree.
“Under Rule 26(a) governing initial disclosures, the parties must, among other things,
disclose ‘a computation of any category of damages claimed’ and make ‘available for inspection
and copying the documents or other evidentiary material, not privileged or protected from
disclosure on which such computation is based.’” City & Cnty. of San Francisco v.
Tutor-Saliba Corp., 218 F.R.D. 219, 220 (N.D. Cal. 2003) (quoting Fed.R.Civ.P. 26(a)(1)(C)).
“These initial disclosure must be based on the information ‘reasonably available’ to the party
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at or within 14 days of the Rule 26(f) initial discovery conference. Id. (citing Rule 26(a)(1)).
“Rule 26(e) also imposes a continuing obligation to supplement the initial disclosures whenever
the parties find that the initial disclosures were ‘incomplete or incorrect,’ making the operation
of Rule 26 the ‘functional equivalent of a Standing Request for Production under Rule 34.’”
Id.
The court concludes that the plaintiffs “should provide [their] assessment of damages in
light of the information currently available to [them] in sufficient detail so as to enable each of
the multiple Defendants in this case to understand the contours of [their] potential exposure and
make informed decisions as to settlement and discovery.” City & Cnty. of San Francisco v.
Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003).
The defendants further argue that the plaintiffs are required to produce a privilege log
addressing the documents they are withholding based on a claim of privilege. Doc. 138, p. 8.
The plaintiffs explain, however, that these documents are covered by the court’s ESI
(Electronically Stored Information) order, Doc. 120, section F(1)(e). Doc. 145, p. 6. This
section explains that
Privileged communications between or among counsel involving the facts that
form the basis of or are related to the allegations set forth in this Action do not
need to be identified on a privilege log. Additionally, communications between
or among counsel or experts retained for the purpose of this litigation that
post-date the issuance of the civil investigative demand by the Office of the
Indiana Attorney General to Michael D. Lansky, L.L.C., dba Avid Telecom on
August 1, 2022, need not be placed on a privilege log.
Doc. 120, p. 12. The defendants provide no evidence tending to show that the plaintiffs are
incorrect when they assert that their documents fall within this rule. Accordingly, the court
finds that the documents are covered by Doc. 120, section F(1)(e) and the plaintiffs do not need
to provide a privilege log.
The defendants further assert that they served Rule 30(b)(6) notices on 49 plaintiffs but
the plaintiffs objected to the notices asserting that they failed to properly identify the topics that
the witnesses would be required to address. Doc. 138, p. 9. The defendants assert that they only
wanted the witnesses to discuss allegations of fact that were set forth in the Complaint. Id.
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In their response, the plaintiffs assert that the notices were facially defective because they
failed to specify the date and time of the deposition and failed to name the deponent in
accordance with Rule 30(b)(6). They object to deposition questions addressing “investigations
[the AGs] conducted that formed the basis for [their] Complaint” or the “discussions AG’s
offices had internally or with other law enforcement agencies, which are privileged” Doc. 145,
p. 7.
The court concludes that defendants are entitled to Rule 30(b)(6) depositions addressing
the factual allegations contained in the Complaint. They are free to notice such depositions in
accordance with the Federal Rules of Civil Procedure.
Finally, the defendants direct the court to their Requests for Production. They assert that
they have asked the plaintiffs to admit that “no regulatory authority in any of the Lead Plaintiff
States or the State Law Claim States has determined any call associated with the Complaint to
be illegal.” Doc. 138, p. 10. They object to the plaintiffs’ response that they are “without
knowledge.” Id.
“Generally, Rule 36(a) [the Rule addressing requests for admission] requires one of three
answers: (1) an admission; (2) a denial; or (3) a statement detailing why the answering party is
unable to admit or deny the matter.” AmeriPride Servs., Inc. v. Valley Indus. Servs., Inc., No.,
2011 WL 1321873, at *2 (E.D. Cal. Apr. 1, 2011). “If good faith requires that a party qualify
its answer or deny only a part of the requested matter, it must specify so much of the request as
is true and deny only the remainder.” Id. “Instead of admitting or denying the request for
admission, a party may respond by claiming inability (lack of sufficient information) to admit
or deny the matter stated in the request.” Id. “But a party responding in this manner must also
state that he or she has made ‘reasonable inquiry and that the information known or readily
obtainable by the party is insufficient to enable the party to admit or deny.’” Id. “The
responding party is required to undertake a ‘good faith’ investigation of sources reasonably
available to him or her in formulating answers to request for admissions (similar to the duty
owed in responding to interrogatories).” Id. “‘Reasonable inquiry’ is limited to persons and
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documents within the responding party’s control (e.g., its employees, partners, corporate
affiliates, etc.).” Id. “It does not require the responding party to interview or subpoena records
from independent third parties in order to admit or deny a Request for admission.” Id.
The plaintiffs assert in their response brief that they “are not aware of the inner workings
of every State agency within their respective jurisdictions and what actions those agencies may
or may not have taken in regard to Defendants.” Doc. 145, p. 8. This response seems to assume
that the plaintiffs are the various state Attorneys General. That is not correct. The state
Attorneys General appear on behalf of the states themselves. Complaint, Doc. 1, p. 5 (“The
Attorneys General of the Plaintiffs are the chief legal officers for their respective states and
commonwealths.”). The State is the plaintiff, and a State should know what its agencies have
decided about the legality of the defendants’ actions. The state Attorneys General, which
represent their respective States, must “undertake a ‘good faith’ investigation of sources
reasonably available [] in formulating answers to [these] request[s] for admissions.”
AmeriPride Servs., Inc. v. Valley Indus. Servs., Inc., No., 2011 WL 1321873, at *2 (E.D. Cal.
Apr. 1, 2011).
The defendants further assert that, in response to Requests for Admissions Nos. 18-20,
“Plaintiffs’ responses do not address the substance of the requests and fail to clarify their
position.” Doc.138, p. 11. The defendants do not, however, explain the subject of those
Requests or the content of those responses.
IT IS ORDERED that the plaintiffs shall by November 28, 2025, and to the extent they
have not already done so, provide discovery in accordance with this order.
IT IS FURTHER ORDERED that the parties’ counsel shall confer on or before
Friday, December 12, 2025, regarding any discovery issues remaining following the responses
ordered herein and attempt to resolve any such issues.
IT IS FURTHER ORDERED setting a telephonic status conference on Friday,
December 19, 2025, at 11:00 a.m. The parties shall be prepared to identify and discuss any
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remaining discovery issues at that time. Counsel shall call in to the following number for the
status conference: 1-855-244-8681, access code 2313 799 3220.
IT IS FURTHER ORDERED that this Order should not be interpreted as preventing
or discouraging the parties from continuing to confer regarding the most satisfactory means of
proceeding with the discovery process. Should the parties wish to amend the timing or process
outlined by this Order, they may file a joint motion with proposed timing/method.
DATED this 24th day of October, 2025.
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