Telemarketers will accuse you of opting in - then refuse to take the most basic steps to prove it - telemarketer Joe Delfgauw admits why

This is part of my long running series on how telemarketing really works.

When called to account for unwanted sales calls, telemarketers are quick to claim the consumer is the one who asked for the calls. They will usually provide a date, time, IP address, and sometimes device information for the supposed opt in.

Here is what I personally have never seen them do - subpoena for the identity behind the IP address. Ask where the plaintiff was at the date and time of the supposed opt in. Subpoena the plaintiff's car to find out where it was at the time of the supposed opt in. Subpoena the plaintiff's cell phone provider to find out where it was at the time of the supposed opt in. Or do anything proactive to prove that the plaintiff is the person who asked for the calls.

Recently, telemarketer Joe Delfgauw testified as to why that is - they don't do anything proactive to prove that the plaintiff is the person who asked for the calls because they know the investigation won't lead to anything. Telemarketers can only prove their case with allegations - they know the evidence that would turn up as the result of subpoenas would help the consumer, not the telemarketer.

The following is from Joe Delfgauw's deposition testimony. The setup is Mr. Delfgauw claimed there was an opt in from IP address 205.185.223.105, and Mr. Delfgauw believed the IP address was from a virtual private network. Mr. Delfgauw is being deposed by the pro-se plaintiff Nathen Barton, my law clerk.

Q. From the federal case. I said, "Did you look at that 205 IP address to see where it came from?" And you said, "I did. Actually, my attorney did and he shared it with me and" --

A. This whole thing is correct.

Q. You said you learned it was from a VPN?

A. Yes.

Q. And --

A. Going down?

Q. Okay. Then on NB1318, I said, "What information do you have that I've ever used a VPN? And your answer was, "I don't intend to speculate on Mr. Barton's use of any virtual private network or proxy service."

A. Yep.

Q. So what does it mean, you don't intend to speculate?

A. I can't prove you used a VPN. I'd have to subpoena your records and I don't think that any court would allow me to know if you've used a VPN before [This is a moronic belief, and why would he not at least ask?] and if you did, well, it's a big thing. But I don't intend to speculate on if it was yours or Peter Schneider's or your kids or I don't know.

Q. So why -- so I won't object to your subpoenaing whatever. Why don't you subpoena away? I won't object.

A. Because what am I going to find? A fake name?

Q. So your argument is there's no VPN to be found?

A. I didn't say.

Q. Well, then why don't you file for subpoenas?

A. Why would I need to? We're here. What's that going to prove? Again, I can't prove you were -- I was sitting on your shoulder and saw you opt in, so even if I prove, what does that mean? Let's say -- the only thing it can do is damage me because you used a fake name, you can go, Aha, Mr. Smith owns that VPN. There's no -- the whole purpose of a VPN is to hide your IP address. The whole purpose of it is.

Q. So you didn't subpoena for --

A. Nope.

Q. -- looking for use of VPN because you knew there would be nothing to be found and you'd look bad when you didn't find it?

A. I didn't say that. I just said there's no -- there's no positive -- there's no positive response for me to subpoena a VPN.

Q. Well, what if you found something? Wouldn't that be -- wouldn't that be Hey, he subscribes to VPN services; that came from a VPN. You don't think that helps you?

A. No, because I -- I -- I don't know how to say this respectfully so I'll just say it. I don't think you're that stupid. I don't think you're that stupid to put your own name on an VPN.

Q. So you think I'm so stupid that I'll do other dumb things, but just not that one?

A. I don't know. I don't know what's wrong with you.

Q. Okay. So you -- you figured I'm not going to find any of him using a VPN. It will just make me look bad if I ask for that information?

A. I'm saying that it doesn't help my case so why subpoena it? [So no amount of digging will help Mr. Delfgauw's case?]

Q. No, that's -- so you're admitting it doesn't help your case?

A. I'm admitting that, absolutely. I don't intend to speculate why you used it. My speculation is you did it to hide your IP.

Q. Well, so you are going to speculate that I do have the use of a VPN?

A. I'm going to speculate that you are here and you're suing about the September -- you -- the June 12th, you're admitting that you got a text message or a call, right?

Q. And --

A. And then that click is that -- that's all I can speculate or actually factually is the click came from that. That is a VPN, that VPNs are known for people to use to hide their IP address.

Q. And you --

A. That's what I'm admitting.

Q. And you don't want to ask my internet service providers, Hey, is this guy using a VPN?

A. Why would I do that? [Wouldn't he only not do this because he knows the plaintiff isn't using a VPN and he doesn't want the plaintiff's ISP to confirm it?]

Q. Because it would help you.

A. There's no positive. Mr. Barton, I can testify under oath that of the ten people in my history that I've checked for VPNs, every single one of them used a fake name. That's the purpose of them. They promote that. Why would I want to actually even spend any time subpoenaing something where I know that only the dumbest fool in the world would use their real name?

Q. Well, when you ask my ISP if I use a VPN, what has it got to do with the name?

A. Because, again, I don't know how to say this, unless you're really stupid, you wouldn't do it from your house. Why would you do it from your house? You'd do it from somewhere else. [Of course this explains why the police don't bother with basic detective work - people never make mistakes or overlook things. And don't VPN's need to be paid for? How about checking the plaintiff's payment records to see if there is a VPN subscription? Or forensically examine the plaintiff's devices to see if there is VPN software installed. Didn't Joe Delfgauw not do any of this because he knew the plaintiff opted in story was false? If you telemarketing defendant is playing the same game, pin then down on the investigation they aren't doing in a deposition]

Q. Okay. So that's your argument, is that --

A. Argument is that, in my opinion, that you did things sneaky. I don't know. I haven't spent -- I'm sorry to say this but you're not important enough to me for me to actually try to figure out your sneaky tactics. I have not tried to figure out anything. [Joe Delfgauw says he didn't try to investigate the case because it isn't important to him, but in another part of the deposition he promises to file lawsuits over it.] I'm just trying to litigate this case. And I have come to the conclusion that I have tried my hardest by the recommendation of Dawn and Donna and everybody not to file countersuits and I just -- I'm not going to get rid of you until I do [If the plaintiff asked for the phone calls as Mr. Delfgauw claims, why not get rid of him by doing a basic investigation? Will he do a basica investigation before he files the countersuits?], so those are all coming. I've tried, even, you know, December when you got cocky and were, like, you have nothing on me. I've got so much on you. I just don't want to do it. I don't want to waste the time. [Oh wait he hasn't issued an subpoenas but has lots of evidence, just none he wants to bring to court?] You're probably uncollectible. You probably don't use real names and stuff. You're using Ivette Jimenez. You even use her name on a goddamn phone call. You've said I'm Ivette Jimenez, I mean, it's -- it's so blatant. Why would I even -- why would I want to subpoena one? There's no reason for me to subpoena one. No benefit.

Q. So you're conceding that no one at my house uses VPN?

A. I have no idea. I'm conceding nothing. I haven't checked. Why would I check?

Q. Well, if you think I'm using VPN, why wouldn't you want to prove that?

A. Because you can't ---- because you can't prove it. That's the whole point of the VPN, to hide. You can't prove it. [Don't VPN services have to be paid for? Doesn't VPN software have to be installed on your devices? Doesn't VPN traffic go through your ISP? Isn't Mr. Delfgauw not investigating because he knows the plaintiff doesn't use VPN?]

Q. How do you know that you can't ask my ISP if I'm using the VPN?

A. I don't want to ask them. There's no benefit to it.

Q. So you're not asking them because there's no benefit?

A. I'm not asking them because there's no benefit I can see, nothing, except VPNs are meant to hide IP address.

Joe Delfgauw demonstrates the game telemarketers want to play - blast their allegations that the plaintiff asked for the calls while putting zero effort into proving it because they know their claims are false.

Don't let telemarketers hid behind their non-investigation. Depose them and force them to explain their lack of investigation is because they know the investigation won't help them.

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.

Are telemarketers bothering you in Washington, Oregon, or Montana?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

📞 Call: 206-800-6000 / 971-800-6000

📧 Email: peter@nwdebtresolution.com

Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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