In West Loop Chiropractic & Sports Injury Center, Ltd. et al., v. North American Bancard, LLC et al, 2017 WL 404896, at *1–2 (N.D.Ill., 2017), Judge Gilbert allowed TCPA discovery in a blast-fax case as to other faxes besides those that the Plaintiff received.
The Court agrees with Plaintiffs that the information they seek is relevant to a decision concerning the scope and definition of any class that might be certified in this case. Class discovery is ongoing, and it is set to close on March 17, 2017. [ECF No. 68.] A number of courts in TCPA cases have certified classes similar in definition and scope to the class Plaintiffs here plan to ask the court to certify, that is, a class that includes people who did not receive the exact same fax that the named plaintiffs received but received faxes of a similar nature during a four year statute of limitations look-back period. . . . At least one court has declined to certify a proposed class that was composed of people who received 18 faxes the named plaintiff did not receive. Brodsky v. Humana Dental Insurance Company, 2016 WL 5476233 (N.D. Ill. Sept. 29, 2016). But that court also noted that “most of these other faxes were not even the subject of discovery in this (long-running) litigation.” Id. at *7. Plaintiffs here are attempting to address the shortcoming that the court noted in Brodsky by seeking discovery about faxes sent out by or on behalf of NAB that were similar to those received by the named Plaintiffs. NAB argues that Judge Guzman in Fauley v. C. Specialties, Inc., 15-cv-5581, [ECF No. 36] (N.D. Ill. Oct. 28, 2015), denied a request by the named plaintiffs in that putative TCPA class action for discovery relating to faxes other than those the named plaintiffs received from the defendant. In that case, however, the court observed that “[t]he justification for this expansive discovery appears to be simply that the improper fax message to Plaintiff is, by itself, a sufficient basis for a reasonable belief that Defendant has sent other improper faxes (presumably to individuals other than Plaintiff) during the last four years.” Id. at 2. The Fauley case arguably is particularly relevant to this one as Judge Guzman also is the district judge who will decide the class certification question in this case. The facts in this case, however, are distinguishable from Fauley. In this case, NAB admits in a waiver application it filed with the Federal Communications Commission that it sent out faxes prior to April 30, 2015, that did not contain proper opt-out notices. Plaintiffs’ Position Statement, Appendix 1 [ECF No. 78-1]. In addition, Plaintiffs here have supplemented their Rule 26(a)(1) disclosures with the name of at least one recipient of a fax from NAB that did not contain an opt-out notice that is different from the fax received by the named Plaintiffs. Plaintiffs’ Position Statement, Appendix 2 [ECF No. 78-1]. Therefore, Plaintiffs’ discovery requests in this case are grounded in something more than mere speculation and suspicion. Accordingly, the Court overrules Defendant NAB’s relevance objection. Plaintiffs’ discovery requests here pass the threshold relevance test as the information they are seeking from NAB is relevant to their argument concerning the nature and scope of the class they say should be certified in this case. As such, the discovery requests satisfy the requirement of Rule 26(b) of the Federal Rules of Civil Procedure that discovery be relevant to a claim or defense. This does not mean that Plaintiffs necessarily will be able to satisfy their burden of showing that a class that includes people who received faxes similar to those sent to the named Plaintiffs is appropriate. It only means that Plaintiffs are entitled to discovery that will help them make that argument.