Unsolicited Mail, Telemarketing and Email: Where to Go to “Just Say No”

Tired of having your mailbox crammed with unsolicited mail, including pre-approved credit card applications? Fed up with getting telemarketing calls just as you’re sitting down to dinner? Fuming that your email inbox is chock-full of unsolicited advertising? The good news is that you can cut down on the number of unsolicited mailings, calls and emails you receive by learning where to go to “just say no.”

Credit Bureaus

The credit bureaus offer a toll-free number that enables you to “opt-out” of having pre-approved credit offers sent to you for two years. Call 1-888-5-OPTOUT (567-8688) or visit www.optoutprescreen.com for more information. When you call, you’ll be asked for personal information, including your home telephone number, your name, and your Social Security number. The information you provide is confidential and will be used only to process your request to opt out of receiving pre-screened offers of credit.

In addition, you can notify the three major credit bureaus that you do not want personal information about you shared for promotional purposes-an important step toward eliminating unsolicited mail. Write your own letter or use the sample letter on the back of this Alert to limit the amount of information the credit bureaus will share about you. Send your letter to each of the three major credit bureaus:

Equifax, Inc.
Options
PO Box 740123
Atlanta, GA 30374-0123

Experian
901 West Bond
Lincoln, NE 68521
Attn: Consumer Services Department

TransUnion
Name Removal Option
P.O. Box 505
Woodlyn, PA 19094

Telemarketing

The Federal Government has created the National Do Not Call Registry-the free, easy way to reduce the telemarketing calls you get at home. To register, or to get information, visit www.donotcall.gov, or call 1-888-382-1222 from the phone you want to register. You will receive fewer telemarketing calls within three months of registering your number. It will stay in the registry for five years or until it is disconnected or you take it off the registry. After five years, you will be able to renew your registration.

Federal District Court Opinions

CINGULAR WIRELESS, LLC v. HISPANIC SOLUTIONS, INC., (N.D.Ga. 12-1-2006) CINGULAR WIRELESS, LLC, Plaintiff, v. HISPANIC SOLUTIONS, INC., d/b/a SUPERPROMO USA, MARGARITA F. MARTUL, MARKETING STRATEGY LEADERS, INC., MARKETING LEADERS, INC., ADRIAN E. ABRAMOVICH, JOHN DOES 1-100 and XYZ CORPS. 1-100, Defendants. 1:06-cv-2695-WSD. United States District Court, N.D. Georgia, Atlanta Division. December 1, 2006

OPINION AND ORDER

WILLIAM DUFFEY JR., District Judge

This matter is before the Court on Cingular Wireless LLC’s Motion for Expedited Discovery [2] and Motion to Preserve Computer and Other Evidence [3].

Background

This action was filed by Cingular Wireless LLC (“Cingular”) on November 3, 2006 [1]. Cingular’s claims are alleged against Hispanic Solutions, Inc. d/b/a Superpromo USA, Margarity F. Martul, Marketing Strategy Leaders, Page 2 Inc., Marketing Leaders, Inc. Adrian E. Abrmaovich, (the “Named Defendants”) and 100 John Doe Defendants and 100 unnamed company Defendants (the “Unnamed Defendants”). In the Complaint Plaintiff alleges, on information and belief, that the Named Defendants made “unsolicited telemarketing calls to Cingular subscribers on their wireless phones, including calls made to Cingular company official use accounts, by using an autodialer.” (Complaint [1], ¶ 12.) Cingular alleges further that the following three telephone numbers were used to place these automated calls: 786-718-9058, 786-316-0623 and 305-350-7464. (Id. ¶ 13.) (collectively, the “Telephone Numbers”). The Complaint alleges that Cingular’s facilities indicated that the 786-718-9058 number was being used at a rate of two calls per second, that certain “blog” chat indicated that 786-718-9058 was used for unsolicited telemarketing calls, and that Cingular’s records indicated that the 786-316-0623 and 305-350-7464 numbers are reseller accounts which Cingular alleges “are often used for telemarketing purposes.” (Id. ¶¶ 14, 16.)

Discussion

Plaintiff has moved to “immediately commence discovery, as it is the only method to identify and locate John Does 1-100 and XYZ Crops. 1-100 . . ., and to prevent the routine, accidental or intentional destruction of evidence necessary for Page 3 trial.” (Memorandum in Support Cingular Wireless LLC’s Motion for Expedited Discovery at 2.) The allegations of the Complaint do not describe, on information and belief, or otherwise, what role, if any, the Unnamed Defendants had in the use of the identified telephone numbers or how they may be connected to the claims alleged. The memorandum submitted in support of Cingular’s motion for expedited discovery does not elaborate even concerning the potential roles of the Unnamed Defendants. Cingular states only that by seeking expedited discovery against the named Defendants, Cingular intends to identify unnamed defendants who may be harming Cingular by illegally making outgoing Telemarketing Calls to Cingular subscribers using an autodialing mechanism and prerecorded messages. Cingular believes that the named Defendants either works [sic] with the Doe Defendants or knows [sic] the Doe Defendants and will identify them to Cingular during expedited discovery.

(Id. at 5.)

Cingular does not provide a factual basis for its belief that “[d]iscoverable evidence may be routinely or accidentally destroyed or relocated,” if expedited discovery is not allowed.

Cingular’s request for expedited discovery, while not well-supported, appears to be based on the premise that people who improperly engage Page 4 telecommunication systems for spamming purposes are likely to evade discovery and may be capable of destroying information. The Court, based on its experience, generally accepts this proposition. The Court notes that Cingular has not been able to locate even the Named Defendants. Cingular should be allowed to engage in discovery to locate the Named Defendants so they may be served, and so any information possessed by them may be made preserved.

The Court is not, however, inclined to allow Cingular unfettered discretion to conduct discovery regarding individuals or entities about which it Cingular has not provided even generic identifying information, and whose role in the conduct alleged in the Complaint is unknown. The Court is unwilling to risk unnecessary discovery or discovery unfairly directed at parties not involved in, nor reasonably believed to have information regarding, the suspicions upon which the Complaint is based. That is, Cingular simply has not provided a sufficient factual basis or factual predicate for the Court to evaluate whether the unspecified expedited discovery requested will be reasonable or appropriate, and the Court is unwilling to write Cingular a blank check to draw on the Court’s authority.

Based on the limited information provided by Cingular, the Court is willing to allow limited expedited discovery regarding the Named Defendants. Cingular Page 5 may also present further information to the Court articulating with greater specificity what further discovery it seeks to conduct.

Accordingly,

IT IS HEREBY ORDERED that Cingular Wireless LLC’s Motion for Expedited Discovery [2] and Motion to Preserve Computer and Other Evidence [3] are GRANTED IN PART and DENIED IN PART. Cingular may conduct discovery:

1. To identify the current location of the Named Defendants;

2. Requiring the Named Defendants to provide information regarding the claims asserted in the Complaint, including information relating to the “Telephone Numbers” and their alleged use for telemarketing; and

3. Seeking from third parties the information relating to the Telephone Numbers and their use.

If Cingular requests to conduct expedited discovery in addition to be allowed by this order, it may request such discovery by setting forth in detail the specific discovery requested, to whom it is intended to be directed, the form of the discovery and the timetable for conducting it. Page
6

SO ORDERED.