How Do I Prove a Robocall: The Records the Company Must Hand Over

Why the strongest proof is not on your phone

Your call log shows that calls arrived. It does not show what dialed them, whether a recording played on calls you missed, how many other people received the same campaign, or whether the company had anything resembling your consent. All of that is in the caller’s systems. A TCPA case is won by getting those systems to speak, and the rules of civil procedure exist for exactly that purpose.

How a lawyer forces the records out

Four tools do most of the work:

1. Requests for production. Written demands for specific documents: all dialer records for your number, the consent records for your number, the scripts and recordings used, the vendor agreements, and the company’s do-not-call policy.
2. Interrogatories. Written questions the company must answer under oath, such as identifying the dialing platform, the vendor, the campaign name, and every number used to call you.
3. Subpoenas to third parties. Orders to your carrier, the company’s carrier, and the dialing vendor to produce their records. This is how a spoofed caller ID is traced to a real business.
4. Depositions. Sworn testimony from the company’s witnesses, including a corporate representative who must be prepared to explain how the dialing system works.

Dialer logs and call detail records

Every commercial dialing platform keeps a record of each attempt: the number dialed, the timestamp, the campaign or list it came from, the duration, and a disposition code (answered, no answer, voicemail, “wrong number,” “do not call”). Those logs answer the questions that decide the case: how many calls were placed (the multiplier), whether a recording was used (the voice test), what the system was (the dialer test), and whether the company had already flagged your number before it kept calling (willfulness).

Carrier call detail records corroborate the logs from the outside. They confirm the calls hit your number and can fill in attempts the company’s records omit. In Higgs v. Golden Title Loans (No. 2:20-cv-2559, W.D. Tenn.), the records established 385 calls to a wrong number, and the court applied $1,500 to each on summary judgment, for $577,500, without a trial. Prior results do not guarantee a similar outcome.

The consent file, and what happens when there is none

Consent is an affirmative defense, which means the company has to prove it had your permission. You do not have to prove a negative. In discovery the company is asked to produce the document, form, recording, or database entry that shows you consented to automated calls at your number. Three things happen in practice:

• The company produces a consent record for someone else, the previous holder of your number or a person with a similar name. That establishes a wrong-number case.
• The company produces a form with fine-print marketing language, and the fight is over whether it meets the written-consent standard.
• The company produces nothing, because it bought the list. That is the most common outcome, and it ends the consent defense.

Subpoenas to carriers and the vendor chain

Robocall campaigns are layered: a business hires a marketing agency, which hires a call center, which uses a dialing platform, which buys phone service from a wholesale carrier. A subpoena to the carrier that delivered the call identifies the customer that originated it; a subpoena to that customer identifies the next link. The law holds the business at the top of the chain liable for calls placed on its behalf, so the chain is followed to the company with the money. This is why an unidentifiable spoofed number does not end a case: the number is a starting point for a subpoena, not a dead end.

The “how did you dial” question

Because the dialer test now turns on how the equipment stores or produces numbers, the company’s platform documentation matters. Discovery reaches the vendor’s technical specifications, the configuration used for the campaign, and a corporate witness who must testify about it. Where the recording test applies, this question is often unnecessary: a saved voicemail with a recorded message proves the voice test on its own.

What you need before any of that starts

Discovery begins after a case is filed, and filing begins with what you have: the call log, any voicemails, screenshots of texts, and notes on whether you ever did business with the caller or told it to stop. That material is the subject of evidence for a robocall lawsuit. It does not need to be complete. It needs to be enough to identify a pattern and, ideally, a company. A free review with Max Morgan, Esq. (PA Bar #316096, The Weitz Firm, LLC) can tell you whether it is. No fee unless you recover.

Related: Evidence for a robocall lawsuit · Can I sue a number I can’t identify? · How to find out who is robocalling you · What happens after you file a robocall claim