I often say class counsel should avoid demanding class data upfront. It largely just complicates matters for them.

Instead the right move is to learn about the data sets available so you can determine whether they are reliable or not. If so, you can move forward without the full production. If not, you can get out before wasting any more time-or pivot to an optional strategy.

In Lyngaass v. Icvia 2024 WL 3360653 (E.D. Pa. July 9, 2024) the Plaintiff obtained fax records with an “s” disposition. Basing his class definition on the “s” the Plaintiff argued–and submitted an expert report–suggesting the “s” meant the fax was successfully transmitted.

But the court wasn’t convinced by the expert’s testimony:

Howard’s other testimony at the hearing does not support that every fax number designated with code “S” on the Odyssey Job Reports successfully received Defendant’s faxes. During the hearing, Howard also testified that the ITU-T.30 protocol, the “[f]ax communication protocol employed by all fax machines, fax servers, and other fax devices,” (Howard Rep., ECF 118-2, Ex. B at ¶ 10), makes the Odyssey Job Reports “reliable because the receipt of [the] MCF signal by the sender, as sent from the receiver, tells the sender who’s creating that log that it was successful indeed,” (Hearing Tr., at 34:18–21). Yet, Howard later admitted that the ITU-T.30 protocol does not describe how “successful fax transmissions are recorded in logs” or how a summary report log is created. (Id. at 96:08–12). The 32 Odyssey Job Reports also do not define what “Sent” means: whether all five phases of the fax transmission (which Howard testified a fax must go through to successfully send) were successful such that the faxes were indeed successfully received. (Id. at 97:06–19). Howard also admitted “that computer-based fax systems may record a successfully sent fax using an outcome other than ‘S’ or ‘sent.’ ” (Id. at 97:21–98:04) (emphasis added). Importantly, Howard testified that “false positive reporting” — where a log “indicates that a fax was successful but [ ] it was not” — can occur. (Id. at 100:18–21). As such, Howard’s testimony creates serious doubts with respect to what the Odyssey Job Reports actually report and who the actual class members are.

Interesting, no? The fact that the expert had to concede false “S” reports exist was sufficient for the court not to credit the report.

It gets better.

The defendant had its own expert that pointed out it is unclear what “sent” even means:

Here, Defendant’s expert James Bress (“Bress”) opined that “it is not possible with any reasonable certainty to determine that any of the purported fax transmissions indicated in [the] Odyssey Job Reports were actually successfully transmitted.” (Bress Rep., ECF 116-2, Ex. 3 at ¶ 56) (emphasis added). Bress further explained that there is “no evidence in the record to clarify what the transmission outcome (disposition) labeled as ‘Sent’ means in technical terms [and t]he Odyssey Job Reports do not explain what is meant by ‘Sent’ within the meaning of applicable telecommunication standards.” (Id. at ¶ 51). During the hearing, Bress reiterated that, “[i]n [his] opinion, the Odyssey [J]ob [R]eports and any other evidence in this case do[ ] not indicate what[ ] ‘S’ or ‘[S]ent’ means within those reports, whether it indicates a fax was successfully transmitted or received.” (Hearing Tr., at 111:05–14). Instead, “Sent” could mean that “1) an end-to-end telephone connection was successfully made (Phase A), or 2) a successful fax call set-up handshake was completed (Phase B). In either case, completion of Phase A or Phase B would not indicate that any fax page had been successfully transmitted.” (Bress Rep., ECF 116-2, Ex. 3 at ¶ 53). Further, Howard could not point to any definition in the ITUT.30 protocol or Odyssey’s Job Reports which define the term “Sent” as meaning “successfully received.” 8 (Hearing Tr., at 96:06–15, 97:06–19).

This is really an important point, and not just in fax TCPA cases.

Very commonly I will see data sets from a defendant that purport to show a call disposition, but when compare it to subpoenaed records from a Plaintiff or class member you will find the two do not match. Dispositions from a dialer system may mean anything from a number was eligible to be dialed, that it was attempted by the software but the switch didn’t connect, the switch did connect but no network resources were available, the network was available but the data didn’t transmit, the data transmitted but it wasn’t received, the data was received but it blocked by a carrier, the data was received and not blocked but was still dropped before transit to the handset, the data was transmitted to the handset but unanswered, the data was transmitted to a handset answered but the call dropped before a response.

All of these circumstances might be noted as a “no answer” disposition in a disposition report. And many times the defendant itself will not really understand its own data. Of course, the dialer companies have an incentive to show reliability by suggesting a high percentage of the calls it attempts were “sent”–even if they were blocked by a carrier. So the data sets in a defendant’s possession are generally unreliable to show what really happened on the physical handset from a class member.

This is something for TCPA defendants to keep in mind. Never just concede that events in a call log are as supposedly reflected. These are shifting sand and data sets are often unreliable.