Whether it should happen or not, babies often get split when it comes to class discovery.
Consider Leeb v Charter Communications, Inc., Case No. 4:17-cv-2780, 2019 WL 144132 (E.D. Mo. Jan 9, 2019). There the Hon. Ronnie L. White devoted his time to analyzing the appropriate scope of discovery in a TCPA class action. Passing first on demands seeking prior complaints against the Defendant regarding phone calls the Court found that the demand was overly broad because it was not limited to the types of calls at issue in the Complaint. Similarly, Plaintiff’s formless demands seeking “all documents relating to efforts to comply with the TCPA” were found to be overly broad and that discovery too was denied. Additionally—and importantly—the Court found that Charter had produced sufficient records regarding the underlying account in this wrong number TCPA case to escape an order compelling further discovery of the account holder’s records.
That is where the good news ends, however. The Court goes on to require Charter to produce—pre-certification—records identifying the names of phone numbers of all individuals that Charter called after logging a “wrong number” notation. Yikes.
The order compelling Charter to produce a class list is pretty harsh as class counsel simply does not need to identify class members prior to the certification stage. Indeed discovery designed to compile a class list before certifiability has even been tested seems to put the cart well ahead of the horse. It is also noteworthy that Charter does not appear to have sought cost shifting here. Yet, the US Supreme Court has been clear that the Plaintiff must bear the cost of identifying and notifying class members. Live and learn I guess.
A couple of other notes on Leeb. First, notice that courts are not required to limit or re-write a class counsel’s discovery demands for them. If the demand is overly broad as phrased the Court may—and Leeb did at times—simply deny the requested discovery outright, even if some portion of the demand is valid. One might be surprised how often class counsel charge ahead with motions to compel of this sort—I often remark “you’re making my job too easy with these overly broad demands”—when class counsel would have a much stronger argument if they just limited the demands. Case in point: the demands that class counsel did agree to narrow in Leeb were the very demands that the court found worthy of enforcing.
Also, notice that a Defendant properly redacts information regarding calls to a third-party account holder made to any number that is not at issue on the Complaint. I pioneered this approach back in Tillman and—to my knowledge– every court to address the issue subsequently has agreed with the approach. Yes, the Plaintiff likely has a right to information: i) regarding calls made to the number at issue during the timeframes he/she owned the phone (make the prove ownership first though!) and; ii) the source of the number to the extent Defendant argues it had the consumer’s consent to make calls. But that’s it. The Plaintiff should not be permitted to invade the privacy of the third-party consumer beyond those narrow parameters as Leeb correctly finds.