USTelecom, ITG Urge D.C. Court to Quash Subpoenas From Avid CEO Lansky

USTelecom and its Industry Traceback Group (ITG) subsidiary seek to quash three deposition subpoenas served on them Sept. 28 by Avid Telecom CEO Michael Lansky, said their memorandum Thursday (docket 1:23-mc-00103) in U.S. District Court for the District of Columbia in support of their motion to quash.

The subpoenas seek the deposition testimony of USTelecom CEO Jonathan Spalter, ITG Executive Director Josh Bercu and Warren Currie, USTelecom robocall traceback fraud specialist, plus the production of “a broad range of records relating to ITG’s operations and communications with third parties,” said the memorandum.

The 50-request-long subpoenas “make clear” that Lansky is using his defamation case against TransNexus in U.S. District Court for Northern Georgia in Atlanta “as a means of obtaining evidence for two other actions,” both in federal court in Arizona, said the memorandum. Lansky’s Dec. 7 complaint in Atlanta alleges TransNexus published a blog post falsely depicting him as an illegal robocaller (see 2212080050).

In the first Arizona action, Lansky is defending a suit brought by the attorneys general of 49 states, plus the District of Columbia, for violating telemarketing sale rules, including robocalls, said the memorandum. The AGs’ action apparently is based in part on data “lawfully obtained by regulators from ITG,” and presents “potentially substantial and serious consequences” for Lansky and Avid, it said.

Lansky moved Oct. 6 to dismiss the AGs’ complaint for lack of specific personal jurisdiction, and accused the AGs of running a “public smear campaign” against him and his company (see 2310100001). Notwithstanding that the AGs’ action is “wholly unrelated to the single blog post” at issue in the Georgia defamation suit, it’s primarily the AGs’ action that’s the focus of the “document demands” in the subpoenas served on USTelecom, ITG and three of its executives, said the memorandum.

'Robocalling Vigilante'

In the second Arizona action, Lansky is again pursuing defamation and libel claims against David Frankel and Frankel’s company, ZipDX. Filed a week after his lawsuit against TransNexus, Lansky’s lawsuit calls Frankel “a self-anointed robocalling vigilante.” He alleges Frankel is on a quest “to destroy the reputations of telecommunications carriers that he unilaterally deems as noncompliant with his own metrics for compliance with applicable laws and regulations related to robocalling.”

It seems that because ITG, under its FCC-appointed role, has at times identified Lansky “as associated with a telecom service provider that has transmitted calls likely to be unlawful,” Lanksy now seeks “to uncover everything and anything about ITG’s operations,” said the memorandum in support of the motion to quash. “Whatever the merits” of Lansky’s efforts in either the AGs’ action or the defamation suit against Frankel, Lansky’s demands “are improper” in the context of the subpoenas issued in the Georgia action, it said.

That’s “particularly so” because ITG has already produced records in the Georgia action in compliance with a third-party subpoena issued in June by defendant TransNexus, said the memorandum. The subpoenas should be quashed because they are “plainly overbroad and disproportionate to the needs” of the Georgia action, it said. The subpoenas also would result “in undue burden and expense to non-parties that greatly outweigh their likely benefit,” it said.

Lansky’s subpoenas’ demand that the three USTelecom and ITG individuals sit for a combined 21 hours of deposition time “is unreasonable and borderline harassing,” said the memorandum. There’s moreover “no indication” that any of the three individuals “have knowledge of the allegedly defamatory blog post underlying Lansky’s allegations” in the Georgia action, or that any of them could provide any testimony “bearing on Lansky’s claims,” it said.

ITG already produced any documents in its possession or control, under the June subpoena from TransNexus, “that are even tangentially relevant” to the Georgia action, said the memorandum. “By reviewing those documents, Lansky should be able to identify the proper witnesses to testify about their contents and any relevant related matters,” it said.

'Plainly Irrelevant'

Even assuming the three USTelecom and ITG individuals have knowledge about the many documents requested in the subpoenas, those requests seek information “that is plainly irrelevant to Lansky’s claims” in the Georgia action, said the memorandum. It’s clear the “Rule 26 balancing” weighs heavily against enforcing the deposition demands in the subpoenas, it said. There’s a “substantial burden” in having three high-level employees “each take time away from their many work responsibilities to appear for hours of testimony,” especially “given the lack of any apparent relevance or legitimate need for the deposition testimony,” it said.

Lansky’s document requests in the subpoenas “are overbroad and unduly burdensome,” said the memorandum. The vast majority of the 50 documents requested “have no conceivable relevance to the claims and issues” in the Georgia action, it said. Lansky’s demands for documents identifying all ITG employees and independent contractors, plus records about the ITG’s membership application process “are facially irrelevant” to the defamation claims Lansky has brought against TransNexus in the Georgia action, it said.

“Likewise irrelevant” are the documents requested about the ITG’s process for making tracebacks, said the memorandum. So, too, are the requested records of all tracebacks the ITG has processed, plus “all communications between the ITG and regulators and all ITG communications and agreements with third parties,” it said.

It’s also clear “from the face” of the subpoenas that nearly all of Lansky’s document requests “are designed to obtain information for possible use in other proceedings,” said the memorandum. That’s “not a proper use of discovery,” it said.

The state AGs, for example, sued Lansky in Arizona for his alleged facilitation of 7.5 billion illegal robocalls, said the memorandum. “Numerous document requests” in the subpoenas “appear to be aimed at acquiring information for possible use” in that case, it said. They include requests for documents and communications with various state AGs’ offices about Lansky and documents “relating to the provision of money or other things of value by ITG” to state AGs or other state agencies, it said.