District Court (Fla.) Orders Sweeping Discovery in TCPA Class Action`

In Warren v. Credit Pros Int’l Corp., No. 3:20-cv-763-TJC-MCR, 2021 U.S. Dist. LEXIS 79150, at *20-28 (M.D. Fla. Apr. 26, 2021), Judge Richardson ordered a TCPA defendant to produce sweeping discovery in a TCPA class action.

Now, as to the first category of documents, the Court finds that Plaintiff is entitled to receive information regarding the hardware, software, and capabilities of the dialing system(s) used by Defendant to transmit pre-recorded messages and/or text messages “during the relevant time period so [Plaintiff] can prove or disprove whether each system is covered by the TCPA.” Medina v. Enhanced Recovery Co., No. 15-14342-CIV-MARTINEZ/ MAYNARD, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093, *6 (S.D. Fla. Nov. 9, 2017). As such, Defendant’s objections to RFP Nos. 4, 8, 9, and 49, and Interrogatory Nos. 1, 2, 4, 7, and 8 are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing documents and information limited to the four years prior to the date of the original Complaint (July 8, 2020), i.e., the “relevant time period.” See Sliwa, 2018 U.S. Dist. LEXIS 218993, 2018 WL 1183350 at *4 (limiting the discovery requests to the four years prior to the date plaintiff filed the original complaint). Also, in responding to Plaintiff’s requests, Defendant need not provide information pertaining to calls made to landline connections, because calls made to landline connections using ATDS do not violate the TCPA. See Medina, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093 at *5 (citing 47 U.S.C. § 227(b)(1)(A)(iii)).   Second, Plaintiff is also entitled to receive—prior to class certification—the documents and information related to the call logs, transmission summaries, outbound call lists, and the information contained therein bearing on Defendant’s communications with the putative class members, because Defendant has not moved to bifurcate class and merits discovery and such information is relevant both to the merits of Plaintiff’s claims and to the numerosity and commonality requirements in Rule 23, Fed.R.Civ.P. See Bellenger, 2019 U.S. Dist. LEXIS 153672, 2019 WL 4284070 at *6 (overruling defendant’s “objections based on its unwillingness to produce information for each class member before the proposed class has been certified” where defendant did not move to bifurcate discovery and the outbound call lists were found to be relevant to prove the merits of a TCPA claim and to establish numerosity and commonality under Rule 23); Shapiro v. Dynamic Recovery Sols., LLC, No. 18-cv-60035-BB, 2018 U.S. Dist. LEXIS 124938, 2018 WL 8130559, *3 (S.D. Fla. July 26, 2018) (citing Medina); Medina, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093 at *3-4 (“Outbound call lists are relevant in TCPA class actions to establish the numerosity and commonality requirements for class certification under Rule 23, as well as to prove the merits of Plaintiffs’ claims. . . . Plaintiffs are entitled to the opportunity to explore and obtain information relevant to the Rule 23 requirements—numerosity, commonality, typicality, and adequate representation—in order to meet their burden on these issues. Of necessity, this will require considering the number, nature and frequency of calls to consumers other than the named Plaintiffs. It will also require an evaluation of which dialing systems were used to call which consumers, whether those dialing systems are an ATDS, and the similarities between the dialing systems involved.”) (internal citations omitted). Also, any argument by Defendant that discovery should be limited to information pertaining only to the named Plaintiff is rejected as it “ignores the basic proposition that a class action ‘is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'” Medina, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093 at *3. Thus, Defendant’s objections to RFP Nos. 6, 7, 8, 9, 16, 22, 28, 30, 31, 32, and 37, and Interrogatory Nos. 1, 14, and 20 are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing documents and information for the relevant time period.  Third, Plaintiff is entitled to documents and evidence pertaining to prior express consent and an established business relationship, particularly since Defendant raised the issue of consent as an affirmative defenses in responding to the original Complaint. Although Defendant responded to the Amended Complaint by filing a motion to dismiss, if Defendant’s motion is denied and the case moves forward, Defendant will answer the operative pleading by likely renewing its affirmative defense of prior express consent. Of note, Defendant’s responses to Interrogatory Nos. 17 and 18 provide that “Plaintiff gave express written consent in this matter,” and its response to Interrogatory No. 11 also indicates that Plaintiff provided consent or permission for the calls and/or messages. (Doc. 28-2 at 5, 7.) As such, any documents and evidence pertaining to prior express consent and/or an established business relationship are relevant to Defendant’s defenses and to the merits of Plaintiff’s case. See Medina, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093 at *8 (noting that a “showing how [defendant] obtained the telephone number of a proposed [*24]  class member is relevant evidence of whether that person provided prior express consent”); Gaines v. Law Office of Patenaude & Felix, A.P.C., No. 13cv1556-JLS (DHB), 2014 U.S. Dist. LEXIS 110162, 2014 WL 3894348, *4 (S.D. Cal. June 12, 2014) (“The Court notes that if Defendant asserts the defense of prior express consent, it will have the burden to establish that defense. Thus, the Court finds it is not [] overly burdensome for Defendant to produce the documentation it intends to rely on to support its defense.”). Accordingly, Defendant’s objections to RFP Nos. 17, 18, 19, 20, 34, 41, 53, and 56, and Interrogatory Nos. 11, 12, 18, and 20 are overruled, and to the extent any documents exist, Defendant shall respond (or amend/supplement its responses) by providing the same for the relevant time period.  Fourth, Plaintiff is also entitled to information pertaining to formal or informal consumer complaints, internal investigations, and policies on TCPA compliance. See Shapiro, 2018 U.S. Dist. LEXIS 124938, 2018 WL 8130559, at *4 (stating that “while consumer complaints and internal investigation may not by themselves establish knowledge and willfulness at summary judgment, they are relevant—for purposes of discovery—to Plaintiff’s claim that Defendant has knowingly and willfully violated the TCPA.”); Medina, 2017 U.S. Dist. LEXIS 186651, 2017 WL 5196093 at *8 (“While consumer complaints may [*25]  not by themselves prove knowledge and willfulness, they are relevant to Plaintiffs’ ability to identify potential class members and prove Rule 23 requirements such as numerosity and commonality.”). Thus, Defendant’s objections to RFP Nos. 15, 42, 47, 61, and 62, and Interrogatory Nos. 9 and 15 are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing the same for the relevant time period.  Fifth, information regarding the procurement, acquisition, and origin of the telephone numbers contacted by Defendant is relevant to class certification and to the merits of the case as it pertains to the issue of consent. Defendant claims that RFP No. 51 “is vague and ambiguous as Defendant did not make Calls.” (Doc. 28-1 at 13.) However, Defendant cannot make a non-specific objection and a denial at the same time. Also in RFP No. 51, Plaintiff states that as an alternative to production, “Plaintiff will accept a stipulation regarding the numerosity and ascertainability of the putative class members who were sent Calls.” (Id. at 12.) Defendant here “will not stipulate as to ascertainability, yet objects to information that might aid Plaintiff in demonstrating [*26]  that an administratively feasible system exists to ascertain the class. Defendant cannot have it both ways.” Shapiro, 2018 U.S. Dist. LEXIS 124938, 2018 WL 8130559 at *3. Thus, Defendant’s objections to RFP Nos. 7, 35, and 51, and Interrogatory No. 12 are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing the same for the relevant time period.  Sixth, Plaintiff is also entitled to Defendant’s internal policies, procedures, communications, reports, and compliance documents related to the TCPA, to do-not-contact numbers, and to other similar types of contacts, including a list of consumers who advised Defendant that they did not want to be called again. See Sliwa, 2018 U.S. Dist. LEXIS 218993, 2018 WL 1183350, at *4 (“Information related to communications, reports, manuals, and documents concerning [defendant’s] business practices as they relate to compliance with the TCPA, to do-not-contact numbers and other similar types of contacts are relevant to the claims and defenses in this case as well as the class allegations.”). Defendant objects to RFP No. 21, which seeks all policies and procedures pertaining to TCPA compliance, and RFP No. 49, to the extent it seeks “documents, materials, business, plans, memoranda, and/or minutes,” as vague and ambiguous. However, Defendant does not elaborate as to how these requests are vague or ambiguous. Id. Defendant also objects to Interrogatory No. 16 as vague and overbroad and argues that it cannot accurately respond thereto without Plaintiff narrowing the scope of the interrogatory. (Doc. 28-2 at 6-7.) Interrogatory No. 16 asks: “Were you aware of the restrictions imposed by the National Do[-]Not[-]Call Registry prior to the time the Calls being made? If so, please explain your understanding of the National Do[-]Not[-]Call Registry.” (Id. at 6.) The Court agrees with Defendant that Interrogatory No. 16 should be revised to be more specific. Thus, Defendant’s objections to RFP Nos. 21, 40, 49, 58, 59, 60, 61, and 62, and Interrogatory Nos. 17 and 20, are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing the same for the relevant time period. Defendant’s objection to Interrogatory No. 16 is sustained.   Seventh, Defendant’s agreements and communications with third parties regarding transmission of pre-recorded messages or text messages on Defendant’s behalf during the relevant time period are also discoverable. See  [*28]  Grant v. Regal Auto. Grp., Inc., No. 8:19-cv-363-T-23JSS, 2020 U.S. Dist. LEXIS 42685, 2020 WL 3250075, *2 (M.D. Fla. Mar. 12, 2020) (finding defendant’s communications with third-party vendors regarding “ringless” voicemails campaigns during the pertinent time period to be relevant and proportional to the needs of the case); O’Shea v. Am. Solar Sol., Inc., No. 14cv894-L (RBB), 2016 U.S. Dist. LEXIS 23420, 2016 WL 701215, *6 (S.D. Cal. Feb. 18, 2016) (“Whether other entities aided [defendant] in placing phone calls is relevant to [plaintiff’s] TCPA claims and discoverable.”). Thus, Defendant’s objections to RFP Nos. 43, 44, 45, 46, and 49, and Interrogatory Nos. 8 and 12, are overruled, except as to temporal scope, and Defendant shall respond (or amend/supplement its responses) by providing the same for the relevant time period.