Read the opinion here.
COX These calls are recorded for quality purposes Customers call in to Cox to order services and products BRITTNI COTTLE-BANKS vs. This case is about set-top cable boxes Plaintiff alleges a practice of charging customers for boxes without disclosing the equipment charges and without first obtaining affirmative acceptance. You are not allowed to do that 47 U.S.C. § 543(f). To make her case, plaintiff asks for discovery of her recordings. TAPES You guessed it. Those tapes are gone, daddy, gone. Plaintiff asks for an adverse inference or evidence preclusion. So they sampled some existing tapes. Samples show that Cox did get affirmative acceptance. The Ninth Circuit has not provided a standard for when sanctions are warranted. District courts in CA have adopted the Second Circuit’s three part test: Obligation Culpable state of mind Evidence would support moving party 2 3 citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) 1 as a matter of practice long gone Cox had this Cox had this too (negligence) Not here Call recordings would not have been supportive of Plaintiff’s claim. Motion DENIED. This case fails the test Such as set-top cable boxes (S.D. Cal. May 21, 2013) 10cv2133-GPC(WVG)