In Martin v. Bureau of Collection Recovery, 2011 WL 2311869 (N.D.Ill. 2011), Judge St. Eve ordered discovery against a debt collector on it’s ‘consent’ defense under the TCPA, rejected the argument that evidence of consent was in the possession of the debt-collector’s clients or other third parties. Judge St. Eve explained:
The TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone[.]” Powell v. West Asset Mgmt. Inc., ––– F.Supp.2d ––––, 2011 WL 1126040, at *2 (N.D.Ill. Mar. 24, 2011) (quoting 47 U.S.C. § 227(b)(1)(A)(iii)) (emphasis added); see also 47 C.F.R. § 64.1200(a)(2). The FCC has con-cluded that a debt collector can establish “prior ex-press consent” through showing that the called party provided the cellular telephone directly to the creditor, or to the debt collector, in connection with the particular debt. See In re Rules & Regulations Implementing the TCPA, CG 02–278, ¶¶ 9–11 (Jan. 4, 2008). ¶ Meanwhile, BCR also argues that it cannot produce discovery that is not within its custody or control, such as various third-party contracts, credit card agreements, and loan agreements. Judge Keys rejected a similar argument in Fike v. The Bureaus, 09 C 2258, because the third-parties at issue were the debt collector’s clients, namely, the creditors. (R. 35, Appx. 3, Fike v. The Bureaus, 09 C 2258, 11/11/09 Tr. at 20.) In the context of a similar discovery re-quest, Judge Cox reasoned: We also find unavailing defendant’s argument that it does not possess these documents itself, but will have to obtain them at great expense from third parties. If defendant does not have documents or other information which substantiates the defense it is difficult to fathom why it interposed that defense in the first place. If defendant cannot substantiate this defense with documents or information responsive to the interrogatory, it should say so under verification and withdraw that defense. (10 C 1846, R. 121, 11/9/10 Minute Order, at 1.) Likewise, Judge Guzman rejected a debt collector’s discovery objection as follows: “Unless NCO [the debt collector] never intended to, and will not, assert a consent defense to the putative class claims—an assertion it does not make—it should have marshaled the evidence in support of that defense long ago.” (09 C 2264, R. 70, 1/2/10 Minute Order, at 2.) The Court agrees with Judges Keys and Cox that if BCR intends on asserting the prior express consent, this evidence should be readily accessible from its clients. Also, as Judge Guzman reasoned, because BCR is asserting this defense, it will have to garner this evidence for its own purposes. Accordingly, BCR’s argument that discovery that is not within its custody or control of this evidence is unavailing.